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' 'M«i_- < J Jv r 
 
 THE 
 
 JUDICATURE ACT AND RULES 
 
 1881, 
 
 
 AND 
 
 OTHER STATUTES AND ORDERS 
 
 uJlLATING TO THE PRACTICE OF THE 
 
 SUPREME COURT OF JUDICATURE FOR ONTARIO, 
 
 WITH NOTES. 
 
 BY 
 
 THOMAS WARDLAW TAYLOR, Q.O , 
 
 Maater4n-Oi'dimry of the Court of Chancery for Ontano; 
 
 AND 
 
 JOHN S. EWART, 
 
 Of Osgimle HaU, Barri»tei'-at-Law. 
 
 TORONTO : 
 CAESWELL & CO., LAW PUBLISHERS. 
 
 1881. 
 

 Entered according to Act of Parliament of the Dominion of Canada, in the 
 year of our Lord J881, by Thomas Wardlaw Tatlor and John Skirving Ewart, 
 in the office of tht Minister of Agriculture. 
 
 C. B. ROBINSON, 
 
 PRINTER, 
 
 5 JORDAN 8THBET. 
 
 On<a\7 
 
PREFACE. 
 
 A PREFACE, although usually without excuse or Justification 
 (save custom), ma;" in this case be of some service. The 
 Ontario Judicature Act, while based largely upon the English 
 Acts, effects a mere complete annihilation of all distinction 
 between the jurisdictions of the Courts. In England the 
 Chancery Division still retains exclusive jurisdiction over the 
 various classes of actions which, under the previous practice, 
 were more particularly within the category of Cfcancery causes ; 
 as, for example, administration, mortgage and partnership 
 actions, and those with reference to trusts, specific perform- 
 ance, rectification of deeds, wardship of infants, etc., etc. The 
 Ontario Act abolishes all distinction, gives each Court the 
 jurisdiction formerly possessed by all of the others, and 
 recognizes as the only ground for the transfer of an action 
 from one Court to the other the necessity for the equalization 
 of the business of the Courts, or the existence of some other 
 action with which it should be connected. (O. XLV.) 
 
 RULES OF LAW. 
 
 Special care has been taken to remove all conflict which 
 heretofore existed between the Courts in respect of legal and 
 equitable rights and interests. Sec. 17, after declaring the law 
 in respect of waste, merger, assignments of debts, injunctions, 
 receivers, and other matters, to be in accordance with the 
 principltjs acted upon by the Court of Chancery, provides that 
 " generally in all matters not hereinbefore particularly men- 
 tioned in which there is any conflict or variance between the 
 Kulee of Equity and the Rules of Common Law with refer- 
 ence to the same matter, the Rules of Equity shall prevail." 
 
IV. 
 
 PREFACE. 
 
 COMMENCEMENT OF PROCEEDINGS. 
 
 All proceedings which were formerly commenced by bill or 
 information in Chancery, or by writ at Law, are now to be 
 commenced by writ. (0. 1., r. 1.) This provision does not affect 
 proceedings which were formerly commenced by petition, as 
 in matters affecting lunatics and infants, or by notice, such as 
 partition and administration actions ; and the orders relating 
 to these latter are expressly continued and made applicable to 
 all the Courts. (0. 1., r. 3.) 
 
 PLEADING. 
 
 The system of pleading is an admixture of the Chancery and 
 Common Law systems. It follows the latter in the use. of 
 replication and subsequent pleadings, instead of successive 
 amendments of the bill and the filing of new answers ; but in 
 all other of its essential features it follows the former. All 
 the technicalities of the special pleading which at law served 
 to conceal to a large extent the real point in issue — all the 
 common counts, the general issues (save that " by statute ") 
 are swept away, and the Chancery system of indicating in ordi- 
 nary language the complaint and defence is substituted. " Each 
 party in any pleading . . . must allege all such facta not appear- 
 ing in the previous pleading (if any) as he means to rely on, and 
 must raise all such ground^ of defence or roply, as the case 
 may be, as, if not raised on the pleadings, would be likely to 
 take the opposite party by surprise." (0. XV., r. 23.) 
 
 There was perhaps nothing in the old systems in respect of 
 which Chancery and Common Law were so completely at 
 variance as in the mode of evolving the issues between the 
 parties. The latter was the more logical and theoretically the 
 better, but in practice beset by innumerable difiiculties, arising 
 perhaps from lack of sufficient familiarity on the part of the 
 profession with the form of a syllogism, or rather an incapa- 
 city readily to reduce facts to syllogistic shape; while the 
 former, although inartistic, was free from the embarrassment 
 so often at law complained of in Chambers, and secured the 
 
PREFACE. V. 
 
 clear statement of the point in controversy between the parties. 
 At Law every material allegation in a pleading had to be 
 traversed or confessed and avoided, otherwise it was taken to 
 be admitted. In Chancery it was not necessary, in order that 
 the plaintiff should be put to the proof of every statement in 
 the bill, that the answer should even suggest a doubt of the 
 absolute truthfulness of every paragraph, for it was one of the 
 General Orders of the Court that the silence of the answer as 
 to any allegation in the bill was not to be construed as an 
 implied admission of the truth of such allegation. Of these 
 two systems England has adhered to the Common Law, and 
 already her law reports are full of decisions as to embarrassing 
 pleadings ; Ontario has adopted the Chancery (O. XV., r. 24). 
 
 JOINDER OF CAUSES OF ACTION. 
 
 Multifariousness " has ceased to be an objection by the 
 express enactment of the Judicature Act" (p. 257), and the 
 plaintiff may now unite in the same action several causes of 
 action (O. XIII., r. 1). These statements are subject, however, 
 to qualification in regard to actions for the recovery of land 
 (O. XIII., r. 2), and claims by an assignee in insolvency (O. 
 XIII., r. 3), and subject also to the right of the defendant, in 
 case he alleges that the causes of action cannot be conveniently 
 disposed of in one action, to move for an order excluding one 
 or more of the causes of action set up by the plaintiff. 
 
 JOINDER OF PARTIES. 
 
 All persons may be joined as plaintiffs in whom the right to 
 any relief claimed is alleged to exist, whether jointly, severally 
 or in the alternative (O. XII., r. 1), and all persons may be 
 joined as defendants against whom the right to any relief is 
 alleged to exist, whether jointly, severally or in the alterna- 
 tive (O. XII., r. 3). For example, the plaintiffs were trustees of a 
 charity, and deeming themselves libelled by words published by 
 the defendant, united in bringing an action for the separate 
 torts {See p. 180). Plaintiff made a contract with one defendant* 
 acting as his agent for his co-defendant. An action against the 
 
▼I 
 
 PREFACE. 
 
 •. ) 
 
 principal upon the contract, and in the alternative (if it should 
 appear that the agent acted without authority) against the 
 agent for falsely representing himself as duly authorized was 
 sustained {see p. 181). While there is so much liberty in the 
 joinder of causes of action and joinder of parties, there is 
 nevertheless a close and well-defined limitation of the power. 
 There must be either identity of the subject matter of the 
 action, in which case all parties interested in that subject 
 matter may be made parties ; or there must be identity of 
 parties, in which case various unconnected causes of action 
 niaj' be united, {See p. 213.) 
 
 COUNTER-CLAIM. 
 
 ♦ 
 
 A new and extremely valuable feature of the practice is the 
 right of counter-claim. By sec. IC, sub-s. 4, of the Act, a 
 defendant may set up as against the plaintiff, by way of coun- 
 ter-claim, any cause of action whatever which he may have 
 against him, whether connected with the plaintiff's claim or 
 not, or whether it be for damages or otherwise. If the defend, 
 ants cause of action be against the plaintiff together with 
 some other person not already a party to the action, he may 
 still file his counter-claim, making the third person a party 
 defendant ; but in such case there is this limitation, that the 
 cause of action so set up must relate to, or be connected with, 
 the original subject of the cause or matter (see pp. 32-44). The 
 Court may, however, on the application of the plaintiff exclude 
 the counter-claim if it appepr.-s that it cannot be conveniently 
 disposed of in the pending action (O. XV., r. 36; See pp. 42-44). 
 
 THIRD PARTY. 
 
 Another new and excellent feature of the Act is the power 
 given to a defendant, who claims to be entitled to contribution 
 or indemnity or any other remedy or relief over against a third 
 party, to notify such person of the pendency of the action, and 
 thus bind him by the result. The person notified may, if he 
 so desire, appear in the action and take an active part in the 
 defence ; but whether he do so or not he is estopped by the 
 judgment fiom disputing any matter determined by it. 
 
PREFACE. 
 
 VU. 
 
 TRIAL. 
 
 Combining the methods permitted by the old practice with 
 those sanctioned by the new, there seems to be now a sufficient 
 variety of modes in which, in contested cases, judgment may 
 be obtained. 
 
 1. The parties may agree upon some issue or issues of fact 
 which may by an order be sent down to trial, R. S. O., c, 50, 
 8. 189, et seq. 
 
 2. The whole action may be compulsorily referred to arbitra- 
 tion, R, S. 0., c. 50, s, 189, et seq. 
 
 3. Or it may be referred by consent of parties, R. S. O., c. 50, 
 8. 201, et seq. 
 
 4. Questions arising in the action (but not the action itself) 
 may be referred to an official referee or other person agreed 
 upon for report, Ont. Jud. Act, s. 47. 
 
 5. Questions or iasues of fact (but not the action itself) may 
 be sent before an official referee or other person agreed upon 
 for trial, Ont. Jud. Act, s. 48. 
 
 6. Necessary inquiries or accounts may be ordered to be 
 made or taken at any time, notwithstanding that there is some 
 special or further relief sought for, O. XXIX., r. 1, and see 
 R. S. 0., c. 48, ss. 26-29. 
 
 7. The parties may concur in stating questions of law in the 
 form of a special case for the opinion of the Court, O. XXX., 
 r. 1. 
 
 8. Or the Court or a Judge may direct a special case to be 
 stated, O. XXX., r. 2. 
 
 9. If the writ be specially indorsed the plaintiff may, after 
 appearance, apply for leave to sign final judgment upon an 
 affidavit verifying the cause of action, and stating a belief that 
 there is no defence, O. X., r. 1. ' 
 
 10. Any party, at any stage, may apply upon admissions of 
 fact in the pleadings or in the examination of any other party, 
 for such order as he may be entitled to ; or where the only 
 evidence consists of documents* and such affidavits as are neces- 
 sary to verify them ; or where infants are concerned and 
 
VIU. 
 
 PREFACE. 
 
 !! 
 
 evidence is necessary, so far as they are concerned for the pur- 
 pose of proving facts which are not disputed, 0. XXXVL, r. 8. 
 
 11. Any application before the Court may be turned into a 
 motion for judgment (0. XX XV I., r. 9). 
 
 12. At any time after the service of the writ an ex parte 
 application may be made for leave forthwith to serve notice of 
 motion for judgment. If leave be given, the Court may on 
 return of the notice either grant or refuse the motion, or give 
 directions for the examination of either parties or witnesses or 
 the making of further inquiries, O. XXXVI., r. 10. 
 
 13. Cases formerly within the jurisdiction of the courts of 
 law, if they escape premature extinction under one of the fore- 
 going provisions, are to be tried as formerly they would have 
 been, Ont. Jud. Act, s. 45. 
 
 14). Cases formerly within the exclusive jurisdiction of the 
 Court of Chancery are to be tried according to the Chancery 
 practice, Ibid. 
 
 JUDGMENT. 
 
 The Judge at the trial may direct judgment to be entered 
 (O. XXXI., r. 21). In other cases a motion for judgment must 
 be made to the Court (0. XXXVI., r. 1), when judgment may 
 be ordered to be entered, or the Court may direct the motion 
 to stand over for further consideration, and direct such issues 
 or questions to be tried or determined, and such accounts and 
 inquiries to be taken and made as it may think fit. Judgment 
 may either take the Chancery form of a decree or of an order 
 to enter judgment as at Common Law. (See notes to 0. 
 XXXVIL, r. 1). 
 
 PRACTICE. 
 
 In enacting a new procedure the Legislature htm no doubt 
 endeavoured to adopt that which, in the conflict between 
 the former practices, seemed to be the better ; and the Courts 
 have decided that where no provision is made by the Act or 
 Rules " that practice, which appears, upon consideration, to be 
 best, ought to prevail" (p. 28). The general course of the 
 English authorities has been to assimilate the Common Law 
 
PREFACE. 
 
 IX. 
 
 to the Chancery practice (p. 27). The controversy with re- 
 ference to the respective merits of the Chancery and Common 
 Law methods of applying for orders has been compromised, 
 by providing that in chambers at Toronto motions are to 
 be upon notice (O. XLVIII, r. I), and el< -^whero upon rum- 
 raons (0. XLIX., r. 11); in Court in moving for a now trial, 
 where \]u: action has been tried before a jury a rv.le nisi must 
 be obtained (O. XXXV., r. 1) ; but other motiuuH are to be upon 
 notice (O. XLVIL, r. 1). 
 
 COSTS. 
 
 All the Statutes with reference to costs following the verdict, 
 obtaining certificates from the Judge, etc., are superseded (See 
 p. 37C). By 0. L., r. 1, costs of, and incident to, all proceedings 
 are to be in the discretion of the Court. Where the action is 
 tried by a jury the costs are to follow the event, unless upon 
 application made at the trial, for good cause shewn the Judge 
 before whom the action is tried, or unless the Court, upon a 
 subsequent application, in its discretion, otherwise order. The 
 rights of trustees, mortgagees or other persons to costs out of a 
 particular estate or fund to which they would be entitled 
 according to the present rules of the Court of Chancery are 
 expressly reserved. 
 
 FORMS. 
 
 In the preparation of so extensive an Act it would be almost 
 impossible completely to exclude errors, and while these appear 
 throughout the Statute, they occur with most frequency among 
 the forms. Although the forms are directly sanctioned by the 
 Legislature (see O. LIX.), the adoption of the errors may lead 
 to difficulty and embarrassment. Form No. 32 is of an affidavit 
 of service of a writ of summons, but does not comply with O. 
 VI., r. 12 (a). In some of the forms of statements of claim 
 (Ncs. 45, 50, 61, 64, 68) allegati is are given, which are to be 
 introduced by amendment to meet some defence set up in the 
 statement of defence. This is wrong. Such matter must be 
 raised in the reply and not by amendment as formerly in 
 Chancery. In the forms of statements of defence (see Nos. 55, 
 
PREFACE. 
 
 57, 60, 73) all allegations which the defendant does not wish to 
 admit are specifically denied. This is necessary in England, 
 but not under the Ontario Act (see supra under heading 
 Pleadings). The forms of Reply (Nos. 63 and 66) are tinged 
 with the Chancery method of reply. They commence, " The 
 defendant pretends," etc., and "The defendant alleges," etc. 
 It is as improper that the plaintiff should in this manner 
 reiterate the defence as it would be for the defendant to restate 
 the claim filed by the plaintiff. Among the forms of indorse- 
 ment upon writs of summons (No. 9) are those of two claims to 
 administer an estate — one by a creditor, the other by a legatee 
 — and forms Nos. 39 and 41 are statements of claim to be 
 filed in similar actions. It must be remembered, however, 
 that in simple cases the proper form of commencing administra- 
 tion proceedings is not with the assistance of these forms, but 
 by a notice of motion under the former Chancery practice. 
 Form No. 11 is of a notice of motion returnable in Chambers, 
 and among the various jrders, notice of moving for which i? 
 given, are: — (1) an order for discovery of documents which 
 may be obtained upon praecipe (0. XXVII., r. 4), and (2) an 
 order for examination of a judgment debtor as to means, no 
 order at all being necessary (0. XLI., r. 1). Forms (Nos. 125> 
 138) are also given of orders made in Chambers for these pur- 
 poses. Form 110 is of an order giving leave to issue a writ 
 for service out of the jurisdiction, but 0. VII., r. 4, provides 
 that no such order shall be necessary. 
 
 THE PRESENT WORK. 
 
 In the compilation of the present work there were two 
 courses open to the authors : to content themselves with merely 
 noting any cases which appeared to bear upon the text, or to 
 make some endeavour to elucidate the new, by references to the 
 old, practice ; to compare the Ontario with the English Act and 
 Bules; and to suggest the solution of difficulties which appeared 
 to exist. After as careful a study of the whole subject as 
 limited time, and pressure of other engagements would permit, 
 the authors determined to adopt the latter course. They are 
 apprehensive that some, perhaps many, of the suggestions may 
 
PREFACE. 
 
 XU 
 
 prove to be erroneous, but they feel confident that having put 
 forth their best efforts for the assistance of the profession, they 
 may safely depend upon its indulgence in respect of errors in a 
 work so large and so surrounded by difficulty. 
 
 The authors, moreover, are well assured that whatever may 
 be the merits of those portions of the work performed by them- 
 selves, there will still be found in its pages much that will be 
 of the greatest value to members of the profession. The 
 annotations to the English Trustee Acts and the later Chan- 
 cery Orders are from the pen of Mr. G. S, Holmested, Registrar 
 of the Court of Chancery ; those to the Ontario Trustee Act 
 have been supplied by Mr. W. H. McClive, of St. Catharines > 
 the admirable summary of the practice in mortgage suits has 
 to be credited to Mr. N. W. Hoyles, and the practical notes 
 upon an administration suit to Mr. T. S. Plumb. Interspersed 
 with these latter are references to changes effected by the 
 Judicature Act, for which the authors are alone responsible. 
 This preface would be incomplete without an expression on 
 the part of the authors of their thanks to these gentlemen for 
 the arduous work which they have so kindly undertaken, and 
 so ably performed ; and also to Mr. Alex. Stuart and Mr. J. Y. 
 Cruikshank, students-at-law, for their exceedingly patient and 
 painstaking assistance in the compilation of the whole work. 
 
 T. W. T. 
 
 J. S. E. 
 
 Toronto, 1st June, 1881. 
 
f 
 
 i 
 
 ill 
 
 Ml 
 
TABLE OF CONTENTS. 
 
 Table shewing the sources from which the Judicature Act and Rules have 
 
 been compiled 1-18 
 
 Judicature Act 19-124 
 
 Constitution of Supreme Court 19-23 
 
 Jurisdiction of High Court 23-28 
 
 " Court of Appeal 28-30 
 
 Rules of Law declared upon certain points 30-62 
 
 Sittings and Distribution of business 63-69 
 
 Appeals 69-87 
 
 Trial and Procedure 87-99 
 
 Rules of Court 99-103 
 
 Officers and Offices 103-115 
 
 Solicitors 115 
 
 County Courts and Judges 116-119 
 
 Miscellaneous Provisions 119-121 
 
 Repeal 122 
 
 Interpretation 122-124 
 
 Rules ofCourt 125-405 
 
 Form and Commencement of Action 125-126 
 
 Writ of Summons and Procedure .... 127-129 
 
 Indorsements of Claim 129-139 
 
 Disclosure by Solicitors and PlaintifiFs 189-144 
 
 Renewal of Writ 144-146 
 
 Service of Writ 146-155 
 
 " outofOntario 155-161 
 
 Appearance 162-168 
 
 Default of Appearance 168-174 
 
 Leave to Sign Judgment . . , 174-178 
 
 Application for Account 178-179 
 
 Parties 180-212 
 
 Joinder of Causes of Action 212-216 
 
 Lunatics, &•; 216-217 
 
 Pleading generally 217-230 
 
 ' ' Matters arising, pending the Action 230-233 
 
 Statement of Claim 233-236 
 
 Defence , 236-240 
 
 Discontinuance 240-243 
 
XIV. 
 
 TABLE OF CONTENTS. 
 
 Page. 
 
 Reply and Subsequent Pleadings 243-244 
 
 Close of Pleadings 244-245 
 
 Issues 245 
 
 Amendment of Pleadings 246-255 
 
 Demurrer, 255-264 
 
 Default of Pleading 264-269 
 
 Pajonent into Court in Satisfaction 270-272 
 
 Discovery and Inspection .' 272-289 
 
 Admissions 289-292 
 
 Inquiries and Account 292-294 
 
 Questions of Law 294-297 
 
 Trial 297-309 
 
 Evidence generaUy 310-312 
 
 Commissions to Examine Witnesses 312-317 
 
 Evidence by Affidavit 317-320 
 
 Motion for New Trial in Jury Cases 321-323 
 
 Motion for Judgment 324-329 
 
 Entry of Judgment 329-334 
 
 Execution 334-343 
 
 Writs of Fieri Facias 344 
 
 Attachment of the Person 345-346 
 
 Debts 346-354 
 
 Writ of Possession 354 
 
 " Delivery (Chattels) , 355 
 
 Change of Parties by Death, &c 365^360 
 
 Transfers and Consolidation 360-361 
 
 Interlocutory Orders as to Mandamus, &c. , &c 362-365 
 
 Motions and other Applications 365-367 
 
 Applications at Chambers 368 
 
 Officers and Offices.. 369-376 
 
 376-391 
 
 392 
 
 Costs 
 
 Notices and Paper, &c . 
 
 Time 392-395 
 
 Affidavits 396-397 
 
 Divisional and other Courts 398 
 
 Eflfect of Non-compliance and Errors 398-399 
 
 Accountant's Office 399-400 
 
 Sittings and Vacation 400-402 
 
 Exceptions from the Rules 402 
 
 Forma 
 
 402 
 
 CountyCourts 403 
 
 Interpretation 404 
 
 Fending Business , . . , 404-405 
 
 Forms [1H95] 
 
 Writs of Summons, Ac [l]-[3] 
 
 Indorsements on Writs [3]-[12] 
 
TABLE OF CONTENTS. 
 
 XV. 
 
 Notices 
 
 Affidavits • • • . . 
 
 Pleadings 
 
 Praecipes 
 
 Subpoenas, Commissions, &c 
 
 Certiorari and Prohibition 
 
 Orders 
 
 Judgments 
 
 Writs of Execution 
 
 Act respecting the Court of Chancery..'. 
 
 " Attorneys-at-Law . . . . 
 
 Act for better securing Trust Funds and for the Relief of Trustees 
 
 Act for the further Belief of Trustees 
 
 Act to Consolidate and Amend the Laws relating to the Conveyance 
 and Transfer of Real and Personal Property vested in Mort- 
 gagees and Trustees 
 
 Act to extend the provisions of the " Trustee Act, 1850." 
 
 Act respecting Trustees and Executors and the Administration of 
 
 Estates 
 
 General Orders of the Court of Chancery 
 
 Page. 
 [13H23] 
 
 [23H26] 
 
 [26H48] 
 
 [49H56] 
 
 [56H60] 
 
 [60h[62] 
 
 [62^[79] 
 
 [79H90] 
 
 [90H951 
 
 [99H123] 
 
 [124H135] 
 
 [136H142] 
 
 1143H1441 
 
 [145]-[172] 
 [173H176] 
 
 [177H180] 
 [181]-[266] 
 
TABLE OF CASES. 
 
 Note. — The numbers in brackets refer to the latter portion of the book. 
 
 PAGE. . 
 
 V. ....[139] 
 
 V. Corcoran 148 
 
 v.Jolland [197] 
 
 A. & B., Re 381, [130], [133] 
 
 Abbott.Re [126], [135] 
 
 " v.Parfit 215 
 
 • ' The Canada Central Ry. 
 
 Co 260 
 
 Abellv. Hilts 275 
 
 " Weir [1061, [254], [260] 
 
 Aberaman Iron Works v. Wickens. 204 
 
 Abernethv v. Patton 237 
 
 Abud V. Riches 346 
 
 Acaster v. Anderson [238] 
 
 Accidental Marine Assurance Co. 
 
 V. Mercati 380 
 
 Adams Re, Adams v. Muirhead . . [2411 
 
 " V. Earner [214] 
 
 •• Loomis 194 
 
 Adamson, Re [127] 
 
 Ainley ville Congrega'n v. Grewci . 202 
 
 Ainslie v. Sims 378 
 
 Ainsworth v. Alman 295, [119] 
 
 Aitkin V. Dunbar 41 
 
 Alcock, Re [134] 
 
 AldweU V. Aldwell [204], [236] 
 
 Alf orth V. Espinach 356 
 
 Allan V. Allan [165] 
 
 " Houlden 184,258 
 
 " Kennedy [264] 
 
 Pyper 148 
 
 Allen, Re 62, 141, [139], [141] 
 
 " V. Kennett 215 
 
 " Lloyd 58 
 
 Taylor 318 
 
 Allhusen v. Labouchere ........... 276 
 
 Ambroise v. Evelyn 237, 298 
 
 Ambrose Lake Tin and Copper Co. 78 
 
 Amer v. Rodders 197 
 
 Ames V. Birkenhead Dock Trustees [199] 
 
 Amos V. Chadwick 361 
 
 Anderson v. Anderson 312 
 
 " Bank of British Col- 
 
 umbia .... ........ 279 
 
 " DougaU [1791 
 
 •• Pignet 49 
 
 " Stather 396 
 
 " Titmas 321 
 
 2 
 
 PAQB. 
 
 Anderson v. Towgood 361 
 
 Anderton v. Yates .... 318 
 
 Andrews, Re 59, [130], [1341 
 
 " V. Bohannon 330 
 
 Lockwood [123] 
 
 59,60 
 
 Salt 
 Angel V. Smith 
 
 Angell V. Haddon [186], 
 
 Angelo, Re [148], 
 
 Anglo-Egyptian Naviga^n Co., Re. 
 ' ali» 
 
 198 
 246 
 161' 
 16^ 
 
 Anglo-Italian Bank v. Davies . ..57, 343 
 Wells .... 176 
 
 Annis v. Wilson [2151 
 
 Anon .... 283, 288, 350, [178], [_ _ 
 Archibald v. Hunter '. . . 248 
 
 [2151 
 I, [214] 
 
 Ardagh v. Orchard [215] 
 
 Wilson [214] 
 
 Armitstead v. Durham 254 
 
 Armour v. Robertson 156 
 
 Usborne , 1223] 
 
 Armston, Re '14l1 
 
 Armstrong, Re [113], [157], 1851 
 
 " V. Montgomery [121] 
 
 Arnold v. Arnold 231, 244, 252 
 
 Amott, Re, Ghatterton v. Chat- 
 
 terton 140, [2541 
 
 Arrowsmith, Re [126], [1491 
 
 Arthur v. Brown . . 381 
 
 Ashley v. Taylor 247, 248, 276, 366 
 
 Ashworth v. Outram 72 
 
 Asiatic Banking Co. v. Anderson. 148 
 
 Askew V. Peddle [1851 
 
 " N. E. Ry. Co 222,250 
 
 Aslatt V. Corporation of Sou£h- 
 
 ampton ..*...... 56 
 
 Associated Home Co. v. Which- 
 
 cord .' 208 
 
 Aston V. Hurwitz 131 
 
 Atkinson v. Pilgrim, Re 219 
 
 " Mackreth 184 
 
 Atkins V. Cooke 381 
 
 Atkins' estate. In re 366 
 
 Atkinson, Re [127] 
 
 V. Pegley 
 
 Attorney -General v. Alford..ri39], ^ 
 
 " Cambridge . . 246 
 
 " Clapham.... 279 
 
 " Corporation 
 
 of Avon. . . 248 
 
 .. ri27i 
 
 • • 1127] 
 ]. [141] 
 
xvin. 
 
 TABLE OF CASES. 
 
 PAGE. 
 
 Attorney-General v. Corporation 
 
 of Leicester. 187 
 " Draper's Co. 391 
 
 " East Durham 
 
 Corn Ex. Co. 280 
 " Ettough .... 296 
 
 " Hailing [100] 
 
 " Marsh 2.')1 
 
 " Mercer's Co.. 280 
 
 Mur(Jock....[171] 
 " Nethercoat . . 251 
 
 " Panther .... 217 
 
 ♦' Parkhurst .. 217 
 
 " Pearson .... 187 
 
 " Shrewsbury 
 
 Bridge Co. 125 
 " Tomline .... 70 
 
 " Toronto St. 
 
 Rail. Co . . 125 
 
 " Tyler 217 
 
 " Walker 121 
 
 Ward [162] 
 
 W.olwich... 217 
 " Wyville..... 162 
 
 Atwood V. Chichester 195^ 269 
 
 " Miller 42 
 
 Atwool V. Merry weather 197 
 
 Auioii)tinu8 V. Nerincks 236 
 
 Aylen V. Cox [170] 
 
 Axford.Re [117] 
 
 B. &S.,Re [130] 
 
 Babcock, Re [238], 239 
 
 Bacon, Re [128], [135 
 
 " v.CampbeU 273 
 
 Badcock, Re [148], [151], [164] 
 
 Bagot V. Easton 37, 214, 221, 238 
 
 Bagshawe, Re [129" 
 
 . Bailey.Re [126], [13d" 
 
 " V. Bleecker 7^ 
 
 " CoUett .. 295, [119] 
 
 Bailey's Settlement, Re 250, 311 
 
 Bain v. McCarthy 51 
 
 Bainbrigge v. Baddeley 251, 254 
 
 Bainea V. Bromeley 42 
 
 Baker v.Oakes 377,395 
 
 •• Trainor... 186 
 
 " Wood 56 
 
 Bald V. Thompson [178], [1791 
 
 Baldwin v. Crawford [199] 
 
 Ball V. Cowdley 394 
 
 " The Grand Trunk Ry. Co. 73 
 
 Ballard v. White tl94] 
 
 Bank of British North America v. 
 
 Heaton [198] 
 
 Bank of British North America v. 
 
 Laughbrey 349 
 
 Bank of Montreal v. Cameron 175 
 
 " Fox ... .[205], [236], 
 
 [2371 
 " Harrison .... 132 
 
 " Ketchum[2i9].[237] 
 
 " Ryan [196] 
 
 Bapk of Toronto v. Burton 360 
 
 " UpperCanadav.Ruttan.202,248 
 •• " WaUace.. [267] 
 
 FAOB. 
 
 Bank of Whitehaven v. Thompson 149 
 
 Banks v. Cartwright [188] 
 
 Barber, Re [1421 
 
 " V.Barber 258 
 
 Mackerell . 292 
 
 Bardell v. Miller 134 
 
 Bardin's Will, Re . [118] 
 
 Bardwell v. Sheffield Waterworks 
 
 Co 295 
 
 Barehead v. Hall 339 
 
 Barker v. Eccles . . 49 
 
 " Peile [139] 
 
 " Walters.. ' 198 
 
 Barker's Estate, Re, Hetherington 
 
 v. Longrigg 327 
 
 Barnaby v. Tassels 297 
 
 Barnes, Re 318, [163] 
 
 " V.Taylor 26 
 
 " Twedell .. 136 
 
 Barnett v. Craw 141 
 
 Bamsley, Ex parte [108], [1091 
 
 Barnwell v. Ironmonger [240] 
 
 Barraclough v. Greenhaugh 291 
 
 Barrington, Re 
 
 Earrow, Re [133], 
 
 Barry, Re 
 
 " v. Barry . .[241], [260], [261], 
 
 Brazil [247], 
 
 Bartholomew v. Freeman 
 
 " Rawlings 42 
 
 Bartlam v. Yates 405 
 
 Bartlett,Re. 62 
 
 " v.Bart'ett 361, [1681 
 
 '* Wooa [240l 
 
 Bartley V. Bartley 279 
 
 Barton, Ex parte [135] 
 
 " V.Barton 202 
 
 Bartrum, Re [128] 
 
 Barwick v. Barwick 150, 214 
 
 Basnet v. Moxom [l^ll 
 
 Bateman v. Cook 201, [259] 
 
 187 
 281 
 71 
 163 
 142 
 104' 
 140 
 101 
 157 
 233' 
 135 
 282 
 
 " Margerison .. 
 
 Bates V. Master of Christ's College 
 
 Bath's Case 
 
 Bathurst, Re 
 
 Battell, Re [140], 
 
 Battersby, Re 
 
 Baugham, Ex parte 
 
 Bauman v. Mathews 
 
 Baxter, He ; . . . 
 
 Baxter v. Finlay [200 
 
 Bayley,Re [129], [134' 
 
 •' V. Cass 
 
 " -Miles 295 
 
 Seals V. Spencer 190 
 
 ^Beall V. Smith 25, [108] 
 
 Beamish v. Pomeroy 357 
 
 Beard v. Gray 301 
 
 Beardsall v. Chatham 361 
 
 0]', 
 i], 
 
 Beaty v. Curson [139], [141], 
 
 " Radenhurst [203], 
 
 Bean v. Griffith 
 
 Beauclerk, Re [138], 
 
 Beavan v. Burgess 
 
 Becher v. Webb 
 
 Becke, Re 
 
 142 
 234" 
 402" 
 140' 
 190' 
 '228' 
 133' 
 
TABLE OF CASES. 
 
 XxJi. 
 
 PAOB. 
 
 "Heddall v. Maitland 4C, 42 
 
 Bef'.dington'v. Beddington 128,139 
 
 Beddow v. Beddow 66 
 
 Beecher, Barker & Street, Ke. . . . [1271 
 
 Beechingv. Lloyd 202 
 
 BeflFord.Ke [140] 
 
 Beg V. Cooper 17(> 
 
 Belcher v. Magnay 30 
 
 Bell. Re, Bell v. Bell [239] 
 
 " V. Cade 295, [119], [120] 
 
 " Chamberlain 283 
 
 " Hornby 304 
 
 " The London and North- 
 western Ry. Co 51 
 
 '• Wilkinson ...,27,263 
 
 Belshain v. Purcival 357 
 
 Bendyshe, Re [119] 
 
 Benecke V. Frost 206, 209 
 
 Bennett, Re [134 
 
 ~ 182' 
 
 106' 
 
 V. Baxter 
 
 " Bennett 380, 
 
 " Moore "328 
 
 " O'Meara 136 
 
 " Tregent 140 
 
 Benson V. Hadfield 258 
 
 Paull 55 
 
 Behtley v. Berry 141 
 
 Benton v. Polkingham 241 
 
 Benyon v. Godden 210 
 
 Berdan v. Greenwood 250, 270 
 
 Berkley, Re . . [163], [179 
 
 Bernard v. Alley [1961 [231" 
 
 Jarvis [107^ 
 
 Bemey V. Sewell . b'l 
 
 Berridge V. Roberts 176 
 
 Berry v. Andrews [126] 
 
 " The Exchange Trading Co. 365 
 
 Bertie v. Lord Abingdon [199^ 
 
 Bertolacci v. Johnson '184| 
 
 Betagli V. Concannon [123| 
 
 Bescoby v. Hamilton Water Com- 
 missioners 350 
 
 Bethell V. Casson 280 
 
 Betts V. Cleaver 391 
 
 " Menzies 283 
 
 " Thompson 202 
 
 Bevan, Re ^.[128], [132] 
 
 Berwicke v. Graham 280 281 
 
 Biehn v. Biehn ^ 
 
 Biggar v. Dickson 180, 
 
 Way 
 
 Biggs, Re 
 
 " V. Penn .. 
 
 Bignold, Re [127], [134], 
 
 107] 
 179] 
 231] 
 138] 
 il84 
 162] 
 
 Bigsby V. Dickinson [3191. 
 
 Bilton V. Blakely 56 
 
 Birch, Re [141] 
 
 " V. Cropper [163] 
 
 " Williams 304 
 
 Bird, Re [141] 
 
 Birkebt, Re [1411 [142] 
 
 Birmingham Estates Co. v. Smith. 37, 40 
 
 Bishop V. Willis 251 
 
 Bishop of Winchester v. Bowker. . 281 
 
 Bissett V. Strachan 241 
 
 Blackburn v. SheriflE. .[204], [231], [235] 
 
 PAOB. 
 
 Blackburn TJnlon v. Brooks 311 
 
 Blagrave v. Routh [1291 
 
 Blain, Ex parte 199 
 
 " V. Terryberry [2401 
 
 Blake,Re [124] 
 
 " V.Albion 222,260 
 
 " Appleyard 41.219 
 
 Kirkpatrick [264] 
 
 Blakesley, Re [130] 
 
 Blakeney v. Dufaur 379 
 
 Blanchard, Re [162; 
 
 Blanchenay V. Burt 34r 
 
 Blandy v. DeBurgh [126] 
 
 Blasdell v. Bald« in [254] 
 
 Blaylock v. McFarlane .... [195], [255] 
 
 Bleecker v. Campbell 172 
 
 Blevins v. Madden 363 
 
 Blewitt V. Dowling 46 
 
 Blong V. Kennedy [215], [230; 
 
 Bloomar, Re 150' 
 
 Bloomfieldv. Brooke... 161,345, '231' 
 
 Bloye, Re [141], 142' 
 
 Blunt V. Heslopp [126' 
 
 Blyth & Young, Re 7' 
 
 Boddy, Re [116] 
 
 Boden, Re [156 
 
 Boice V. O'Loane 380 
 
 Bolingbroke v. Kerr 215 
 
 Bolkowv. Foster 274 
 
 Bolton, Re [1411 
 
 " V.Bolton 312,336 
 
 " Corporation of Liverpool 281 
 
 Standard 187 
 
 Bones v. Angler . . 148 
 
 Boomer, Re [128], [132] 
 
 Booth v, Briscoe 180, 183 
 
 Boschetti v. Power 291 
 
 Boucicault v. Delafield 357 
 
 Boughton, Re [119] 
 
 Boultbee, Re [127], [129] 
 
 v. Cameron 237, 259 
 
 Boulton, Re [140] 
 
 " V. Boulton 241 
 
 ' * The Church Society ... 22 
 
 Bounardet v. Taylor 284 
 
 Bourke, Re [165] 
 
 Boustead v. Whitmore , .... 193 
 
 Bovill v. Cowan 282 
 
 Bowell v. Bell ; Brooks v. Israel ; 
 North v. Bilton ; Siddons v. 
 
 Lawrence 377 
 
 Bowen, Re [132 
 
 " V. Fox [122], 
 
 " Pearson 
 
 Bower v. Coop )r 253 
 
 " Hartley.... 209 
 
 Bowker v. Nickson [194 
 
 Bowman v. Bowman 34J 
 
 Bowra v. Wright [160. 
 
 Bowslautrh v. Bowslaugh 307, 104' 
 
 Bpyer v. Beamish 123 
 
 Box, Re 178' 
 
 Boycott, Re [163' 
 
 Boyd V. Haines 349, 36( 
 
 •• Wilson [210], [223 
 
 Boyle, Re .....[134 
 
 . on 
 
TABLE OF CASES. 
 
 ' I 
 
 PAOB. 
 
 Boyle V. Bettws Llantwit Co . . . 67 
 
 Bojrnton v. Boynton 356 
 
 Bracey, Re 127 
 
 Braokenbury, Re [170], [171] 
 
 Bradlaugh v. The Queen 224 
 
 Bradley v. Bradley . 
 " Munton . 
 Bradshaw, Ex parte 
 Brady, Re 
 
 Brandon, Re .... [141 
 
 '* V. Beasley, Re 
 
 Brandreth'8 Trade Mark, Re 376 
 
 Braaheur v. The Secretary of the 
 
 Navy 54 
 
 Brass, Re [156 
 
 Brentnall, Re [163 
 
 Brett V.Smith 128 
 
 Brewen v. Austin [214] 
 
 Bridgewater v. DeWinton 283 
 
 Bridgeman, Re [162] 
 
 Brignam v. Smith 75 
 
 Brignall V. Whitehead ... 359 
 
 Brillinger, Re [112], [2621 
 
 Bristow V. Needham [199] 
 
 British American Assurance Co. v. 
 
 Wilkinson 282 
 
 Broadwood, Re [144 
 
 Brockv. Saul W 
 
 Brocklesby, Re [141 
 
 Broder V. Saillard 309 
 
 Brodie v. Barry 56, [111 
 
 Bromley, Re [241], '260 
 
 V. Williams 197, 257' 
 
 Brook V. Brook [163; 
 
 Brooke v. Wigg 310 
 
 Brothers v. Lloyd [214] 
 
 Brotherton v. Hetherington [227J 
 
 Broughton v. Lashmere 242 
 
 Brown, Re 295, [119], [129] 
 
 " V. Bamford 141 
 
 '• Bemiger 347 
 
 " Capron 280,282 
 
 " Johnson 339 
 
 " Lake [187] 
 
 ' " Lee 236 
 
 «' Merrills 349 
 
 " Perry • [199] 
 
 " Perkins 282 
 
 " Sewell 284 
 
 " Shaw 379 
 
 " Smith 303 
 
 Browne, Re [134 
 
 Browning v. Sabin 34( 
 
 Bryan v. Cormick [199' 
 
 Bryant, Re 335, [144' 
 
 " V, Bull 58 
 
 Bryson v. Huntington [228] 
 
 Bubb V. Yelverton 48 
 
 Buchan v. Wilks [200] 
 
 Buchanan v. Betts 167 
 
 Frank 339 
 
 Buck, Re [2371 
 
 " v. Evans 39 
 
 Buckton v. Higgs 272 
 
 Buckley, Re [138i 
 
 '•• V. Ouelette.. [237] 
 
 PAOB. 
 
 Buckton V. Higg« 376 
 
 Buddihg v. Murdock 246, 251 
 
 Buell v. Fisher [207], [2241 
 
 " Whitney 132 
 
 Buenos Ayres and Eusenada Port 
 Railway Company v. The North- 
 ern Railway Company of Buenos 
 
 Ayres 157 
 
 Bugden v. South 281 
 
 Building and Loan Association v. 
 
 Carswell [2201 
 
 Bulkely v. Earl of Eglington [163], [171] 
 
 Bulkeley v. Hope 295 
 
 Bull V. Harper [200], [236], [237] 
 
 Bullock v. Corry 280 
 
 Bulnois v. AIcKenzie ... 235 
 
 Bunn v, Bunn 283 
 
 Buntin v. Georgen 51 
 
 Burbridge v. Robinson 282 
 
 Burchell v. Giles 219, 253 
 
 Burgoine v. Taylor 79, 305 
 
 Burke v. Ryne . . [209] 
 
 '• llooney 205,395 
 
 Burnham V. Jones .*.. 154 
 
 Burt, Re [148], [161], [171J 
 
 Burton, Re [112] 
 
 " V.Roberts 347 
 
 Bush, Re [126] 
 
 " V, Beavan 55 
 
 Sayer [127] 
 
 " Trowbridge Waterworks 
 
 Co 2:.8, 259 
 
 Bustros V. Bustros 28, 128, 159 
 
 " White 28,62,135,279 
 
 Butler V. Butler 37, 238 
 
 Church 79 
 
 Knight 71 
 
 Byam v. Byam t^^^l 
 
 Byers v. Woodburn [195] 
 
 Byng v. Clark 236 
 
 Byrch, Re [127] 
 
 Byrd v. Nunn 226 
 
 Byrne, Re [162] 
 
 Caddick's Settled Estates, Re .... [119] 
 
 Cade V. Newhall . [195], [2641 
 
 Caisse v. Burnham 79 
 
 " Tharp 350 
 
 Caldwell, Re [178] 
 
 " v. Pagham Hatbour Re- 
 clamation Co 247 
 
 " The Merchants' Bank. 51 
 
 Callander v. Hawkins 233, 272 
 
 Callicott, Re [117] 
 
 Calvert v. Linley 257 
 
 Cambottie v. Inngate 379 
 
 Cameron, Re [129], [135] 
 
 " v. Baker . 148 
 
 Bethune [179], [180] 
 
 " Brantford Gas Co ... . 348 
 
 " Cameron , .^[232] 
 
 Campbell [134] 
 
 " Coalbrooke Ry. Co., 
 
 Re 281,282 
 
 " Eager 357 
 
 MoCrae [218], [222] 
 
 ,¥ 
 
TABliE OF CASKS. 
 
 XXI. 
 
 170] 
 
 148 
 
 36 
 
 [1661 
 
 [133] 
 
 PAOB> 
 
 Cameron v. McDonald, Re Mo- 
 Donald [261 
 
 Wolf Island 79, [228 
 
 Campbell, Re . . .[124], [127], [149], ItiS; 
 
 " V.Bell [239 
 
 Campbell.. 188, [104], [114], 
 [264] 
 
 Garrett.. [197], [21S1 
 
 " Holyland [232] 
 
 " McKay... 256 
 
 Peden 350 
 
 *• Taylor 154 
 
 Tucker.... 273,276 
 
 Canada Permanent Building So- 
 ciety V. Wallis [204] 
 
 " Loan and Savings Co. v. 
 
 Macdonnell.... [221] 
 
 Canadian Oil Works v. Hay , . .234, 395 
 
 Cant, Ex parte 
 
 Capes v. Brewer 
 
 Capjieleus v. Brown 
 
 Caraen, Re 
 
 Carew, Re 
 
 " v. White "284 
 
 Cargill V, Bower 247, 248, 249 
 
 Carlisle v. South-Eastern Ry. Co. 202 
 
 Carney v. Bolton 248 
 
 Carr V. Baycroft 353 
 
 " Carr [104 
 
 " Moflfat . . 355 
 
 Carroll, Re 381, [124 
 
 " V. Carroll " 
 
 " Hopkins 
 
 " Robertson 
 
 Carswell, Re 60, 61, 65 
 
 Carter v. James [226] 
 
 " Sanders 202 
 
 " Sebright [170] 
 
 " Stubbs 265 
 
 Cartlidge v. Cartlidge 60 
 
 Cargo, The, ex ' ' S|irnedon " 208 
 
 Carpenter, Re. ..[ft 8], [151], [161], [166 
 
 Cartwright v. Diehl 107 
 
 Ross 187' 
 
 Carven, Re [128], [130' 
 
 Carver v. Pirito Leite 28< 
 
 Carvick v. Young 136 
 
 Cary v. Cumberland . 291 
 
 " Yarmouth and Norwich 
 
 Ry. Co 55 
 
 Casey, Re [185] 
 
 " V. Arnott 158 
 
 Caahin v. Cradock 250, 279 
 
 Cast V. Poyser [187] 
 
 Castro V. Murray 145 
 
 Casy V. McGrath 167" 
 
 Cataraqui Road Co. v. Dunn .... 349 
 
 Cater, Re [141] 
 
 Catlin, Re 391, [127], [130] 
 
 Catling v. King 226, 257, 258 
 
 Cattanach v. Urquhart 167, [223 
 
 Catton v. Wyld [101" 
 
 Cawthorne, Re [138], ]142' 
 
 Cayley v. Colbert . . . .[201], [224], [234' 
 
 Cazneau, Re [140' 
 
 Cecii V. Brigges 36l 
 
 107 
 '218 
 '227 
 
 PAoa. 
 Cont, al African Trading Co. t. 
 
 Grove 36 
 
 iJhallen v. Baker 346 
 
 Chalmers v. Laurie [192] 
 
 Chamberlain, Re . . [1401 
 
 V. McDonald 259 
 
 Chambers, Re [130] 
 
 V. Unger 380, [121] 
 
 Champ V. Stokes [1261 
 
 Champion v. Forinby [233 
 
 Chancller, Re [125] 
 
 Chard v. Meyers 76, 79 
 
 Charles.Re [205] 
 
 Charlton v. Allen 304 
 
 " Coombs 283 
 
 Chennell, Re 73 
 
 Chesterfield Co. v. Black 248, 249 
 
 Chilcote, Re [127] 
 
 Child V. Stenning 39, 181, 214, 221 
 
 Chilton V. Corporation of London 327 
 
 Chisholm v. Allen [237] 
 
 " Barnard [179 
 
 *' Sheldon 143,306 
 
 Chorlton v. Dickie 298, 304, 356 
 
 Christie v. Christie 250 
 
 Dowker... . [2211, [257] 
 " O vington . . [150], [151], [153] 
 
 Church V. Marsh 866 
 
 Charton v. Frewen 281, 284 
 
 City Bank v. Scatcherd [239], 262 
 
 City of Moscow Gas Co. v. Inter- 
 national Finance Co 380 
 
 Clark, Re. .[112], [117], [118], [130]J240] 
 " Cumberland v. Clark. . . [255] 
 
 " V.Baker 162 
 
 " Callow 226 
 
 " Clarke 337, 352, 353, 379, [101], 
 
 [192], [255] 
 
 Clarke v. Crawthome 141 
 
 " Ferguson 379 
 
 " Perry 362 
 
 " Tyne Improvement Com- 
 missioners 381 
 
 Clarkson v. Parker [127] 
 
 Claxton V. Gilbert 51 
 
 Clay, Re [164] 
 
 Clayton v. Clarke 189 
 
 Clegg V. Edmondson 280, 281 
 
 " Foshwick 56 
 
 Clement v. Bowes 201 
 
 Cleveland v. McDonald 307 
 
 Cliflfv. Wilkinson '.... 382 
 
 Clinch v. Financial Corporation.. 282 
 
 Clowes V. Hilliard / 201 
 
 Glutton, Ex parte [1631 
 
 Coates V. Lloyd 51 
 
 Cobbe, Re . . . . 141 
 
 Cobourg Town Trust, Re The . . . [178] 
 
 Cochenour v. Bullock [206], [216] 
 
 Cockburn v. Gillespie 184 
 
 Cockell V. Pugh [158] 
 
 Cockle V. Joyce 304, 305 
 
 Codwell V. Neale [127] 
 
 Coe, Re [1391 
 
 Coffin V. Cooper 250 
 
 Cogswell V. Sugdsn 61 
 
xxii. 
 
 TABLE or CASES. 
 
 FAOB. 
 
 Cohen v. Hale 849 
 
 Colborne v. Thomas 313 
 
 Colby V. Hawkina 184 
 
 Coldwell V. Hall [185], [2261 
 
 Cole V. Bank of Montreal , 
 
 Colebourne v. Oolebourne 55, 57, 
 
 Oolebrooke, Ex parte 
 
 " V. Attorney-General . . 
 
 " Jones . 
 
 Cole V. Frith 
 
 120 
 100] 
 100] 
 379 
 42 
 
 Glover 260, 261, [2411 
 
 Coleman v. Mellerish [188] 
 
 •• West Hartlepool Har- 
 
 bourCo 284 
 
 Coles V. Sherwood 139 
 
 Collard V. Roe [1671 
 
 Collette V. Goode 202, 228, 247 
 
 " Dickenson 197 
 
 " Preston 231, 244, 262 
 
 Collie, Re 207 
 
 Collier v. Stutely [201] 
 
 Collins V. The Vestry of Padding- 
 ton 75,395 
 
 Collinson v. Collinson . . (61] , [168], [171] 
 
 " Lister 357 
 
 CoUver v. Swazie 140 
 
 Colonial Trusts v. Cameron 305 
 
 .282, [1871, 
 
 [130 
 140 
 163 
 192' 
 170' 
 350 
 350 
 
 Colquhoun, Re 
 
 Colson, Re 
 
 Colyer, Re 
 
 '' Colyer 
 
 Commander v. Gilrie 
 
 Commercial Bank v. Jarvis 
 
 " " Williams ... 
 Commissioners of Sewers of Lon- 
 don v. Gellatly 198 
 
 Commissioners of Sewers of Lon- 
 don V. Glass 276 
 
 Commissioners of the Cobourg 
 
 Town Trust ... [178] 
 
 Commonwealth .v. The Commis- 
 sioners of Alleghany County ... 64 
 
 Conger v. McKechnie 290 
 
 Congreve, Re 391 
 
 Connelly v. Brenner .... " 394 
 
 Conningt<m v. Gilliat 301 
 
 Consolidates Bank v. Bickf ord . . . 339 
 Neilon .... 278 
 
 Const V. Harris 66 
 
 Constable v, Howick [215], [2:101 
 
 Conybeare, Ex parte [163] 
 
 " • V. Lewis 241 
 
 Cookv. Bolton [182] 
 
 " Day 148 
 
 " Euchmarch 215 
 
 •' Gillard [1261 
 
 " Oceanic Steam Co ...... 27, 280 
 
 Coolidge V. Bank of ]V[ontreal 334 
 
 Coombs V. Coombs [186] 
 
 Cooper, Re [1381 
 
 Blissett Ifif^. 
 
 Brayne litA 
 
 Earl Powis 268 
 
 MacDonald [162] 
 
 Purton .381 
 
 Whittingham 66 
 
 << 
 
 Cory 
 
 201 
 
 PAOK. 
 
 Ooppard v. Allen 184 
 
 Oorbettv. Myers 345 
 
 Corby v. Cotton 202, 247 
 
 Comiack v. Geofrian 202 
 
 Cornwall v. Brown [228] 
 
 Corporation of Uudlersfield and 
 
 'Jacomb, Re 97 
 
 CorHellir v. Patman [2281 
 
 V. Thames Iron Co [101] 
 
 The Yarmouth and Nor- 
 wich Railw: y Co 65 
 
 Cossey v. Ducklow 392 
 
 L. B. & S. Coast Railway 
 
 Co. 281 
 
 Cotterell, Re ... 
 
 " V. Stratton 72, 
 
 Cotton V, Houseman . . . 
 
 •' Vansittait 349 
 
 Coulson, Re [138] 
 
 Counter V. Wylde [2151 
 
 Coursejv. Humphrey 162 
 
 Court V. Holland.. ..[183], [213], [225] 
 
 Cousens v. Cousens 391 
 
 Coventry, Re [141] 
 
 Covington, Re [1411 
 
 Cowdellv. Neale [126] 
 
 Cox V. Barker 184,267 
 
 " Barnard 185 
 
 " Cox [1381 
 
 " Henderson [102] 
 
 " Stephens 184 
 
 Cozens v. McDougal ... [195[, [264] 
 
 Cracknall v. Janson 2.50 
 
 Craig, Ex parte [119] 
 
 '^ V.Dillon 133 
 
 Phillips 77 
 
 Cramer v. Cramer [157] 
 
 Crane V. JuUion 148.149 
 
 Cranmer, Ex parte [109] 
 
 Crause v. Cooper k^^] 
 
 Crawford and Grombie, Re [130j 
 
 v.BirdsaU; 169 
 
 Boyd [234] 
 
 Creen v. Wright 377 
 
 Cremetti v. Crown 342, 349 
 
 Cresswell v. Parker 159 
 
 Creswick v. Thompson [200], [203], [2351 
 
 Creuze v. Hunter [182] 
 
 Cridland v. Lord DeManley 254 
 
 Crippen V. Ogilvie [2261 
 
 Crockett v, Bishton 396 
 
 Crom v. Samuels 376 
 
 Crompton v. Lee 32 
 
 Crone v. Crone , 
 Cronk v. Cronk . 
 
 213 
 
 103 
 
 Crooks V. Crooks..[186], [203], [204], [235 
 
 Glen [202], [203], 234'' 
 
 Street [195], [204^ 
 
 Cropper v. Mellersh 187 
 
 Oross V. Cross 188 
 
 Crowder v. Shee [126 
 
 Crowe, Re [148], [1511, [157], 158' 
 
 [161], [174" 
 
 Crowe V. Bamicot 40, 219 
 
 " Russell 46 
 
 Croyden, R« [141] 
 
TABLE OF CASES. 
 
 xxni. 
 
 PAOK. 
 
 184 
 
 345 
 
 202,247 
 
 202 
 
 [228] 
 
 eld and 
 
 97 
 
 [228] 
 [lOll 
 
 65 
 392 
 
 281 
 
 id Nor- 
 
 !o. 
 
 Railway 
 
 [1631 
 
 349 
 
 :::::::l4 
 
 162 
 
 (], (2131, [225] 
 391 
 
 :::::::: [ISj 
 
 [126] 
 
 , 184,257 
 
 186 
 
 [1381 
 
 [102] 
 
 • • « • • • lo4 
 ,..[195[, [2M] 
 
 ,.. 77 
 
 . . [1571 
 
 148, 149 
 
 .;;b 
 
 ... tl30l 
 ... 169 
 ,..[234] 
 ... 377 
 342,349 
 159 
 
 )], [203],[235] 
 
 M 
 
 ly .... 254 
 
 3], [204}, 
 51, [2031, 
 [1951, 
 
 11, [1571, 
 [1611, 
 
 [226 
 396 
 376 
 32 
 213 
 103' 
 235' 
 234 
 ^204 
 18f 
 188 
 126 
 158' 
 174' 
 
 40 219 
 46 
 ,.[1411 
 
 PAoa. 
 CniiclcHhank y. The Floating Swlm- 
 
 mintf Baths Co 97,294,309 
 
 Crump V. Cavendish 176 
 
 CruHo V. Close [207], [2271 
 
 Cuddick V. Cook 187 
 
 Cuddon V. Tite 256 
 
 Cull, Re [1411 
 
 Culleii V. Cullen 335 
 
 Cuhey v. Buttifant 208, 405 
 
 Culverhouse v. Wickens 3*i2 
 
 Cumberlege v. Carter 237 
 
 Cumner v. Tomlinson [215], [2:10 
 
 Cumming, Re [109], [148], 161' 
 
 Cummins v. Credit Valley [228' 
 
 Harrison [211' 
 
 Herrin 76 
 
 Cupples V. Yorston 148 
 
 Currie,Re [134] 
 
 Curriers' Co. v. Corbett [101] 
 
 Curtis V. Curtis 60, 62 
 
 " McNabb 380 
 
 Oust V. Middleton [148], [161] 
 
 Cuthbert v. Commercial Travel- 
 lers' Association. 351, 385 
 Wharraby. ,. [186], [242] 
 
 Dacosta V. Dacosta 188 
 
 •1179], 
 
 253 
 127' 
 '200 
 164 
 119 
 
 Daggv. Dagg 
 
 Dalby, Re 
 
 Dale V. Hamilton 
 
 Dalgleish, Re [158], [163], 
 
 Dalton, Re ,l— j 
 
 • • V. Hayter 231 , 244, 252 
 
 Dalziel v. Grand Trunk Ry. Co. . 278 
 
 Danford v. Cameron 148 
 
 Dangar v. Stewart 357 
 
 Daniel, Re... [127] 
 
 Darby v. Darby 295 
 
 Darbey v. Whittaker [10! ] 
 
 Darling v. Darling. 226, 315, 316 
 
 •• Rice 195,196 
 
 " Wallace 166 
 
 Daubney v. Leake [192] 
 
 Shuttleworth 365, 367 
 
 Davenport v. Rylands [lOl] 
 
 '' Stafford 330 
 
 Davidson v. Boomer 79 
 
 " Cameron 13;i 
 
 " Grange 339 
 
 " Gray 42 
 
 Davie, Re. 
 
 Hayes . 
 
 Davies, Re [170], [171], 178; 
 
 V. Angell . 
 
 Cracraft 
 
 . Felix . . , 
 
 220 
 135' 
 
 165 
 199' 
 321 
 
 " Garland 145 
 
 Davis, Re 62, 327, [112], [148], [162], [164 
 
 " Chanter 162' 
 
 " v. Combermere [183' 
 
 " Davis 71 
 
 " Earl of Dysart [130] 
 
 McCaffrey 62 
 
 Spence 175 
 
 Dav 
 
 7'^«T^ [128],[1301 
 
 " V.Davy ... 251 
 
 PAon, 
 
 Davy V. Garrett 182, 222, 249, 250 
 
 Daw V. Eley 281 
 
 Dawson v. Graham 61 
 
 Dawkins v. Lord Penrhyn 228, 268 
 
 " Lord Rokeby 45 
 
 " Prince Edward of Saxe 
 
 Weimar 45, 1.45 
 
 " Stephenson 45 
 
 " Wynyard 45 
 
 Dawson, Re iiei], [162 
 
 " v.Raynes [199 
 
 •' Shepherd 201 
 
 Day v. Brown [264 
 
 •' Day 295,[119 
 
 " Vinson 291 
 
 Dean v. I^amprey 380, [1211 
 
 " Wilson [233] 
 
 Dear v. Sworder 38 
 
 Dearden, Re [135], [165] 
 
 Decatur v. The Secretary of the 
 
 Navy 64 
 
 DeHart v. Stephenson 198, 203 
 
 De La Rue v. Dickenson 281, 288 
 
 De LaTouche, Re [1411 
 
 DeLisle V. McKaw 187 
 
 Denipsey v. Winstanley [126] 
 
 Dennis, Re [162] , 1631 , [177] 
 
 •• V. Seymour 178 
 
 Denison v. Denison [1791 , [253] 
 
 Densen v. Elworthy .... 186 
 
 Dent V. Basham [132] 
 
 " Sovereign Life Assur'ce Co 300 
 
 Denton v. Maitland 353 
 
 Desborough v. Harris [138] 
 
 Devaynes v. Robinson 187 
 
 DeVisme, Re [161] 
 
 Dew V. Clarke 312 
 
 Dewalt V. Hughitt 274 
 
 Dewar v. Maitland [148] 
 
 " Orr 71 
 
 Dexter v. Cosford [120 
 
 Dick V. McNftb [205' 
 
 Dicker v. Clarke 145 
 
 Dickey V. Heron [203 
 
 Heron [234 
 
 Dickinson, Re [148], [163 
 
 Dickson v. Cook 337, 346 
 
 Draper 187 
 
 " The Neath and Brecon 
 
 Ry. Co 348 
 
 Dilk V. Douglas ; . , . . [150], [156] 
 
 Dimes v. Grand Junction Canal 
 
 Company 22 
 
 " Wright 126 
 
 Dingman V. Austin 194 
 
 Dix V. Groom 75, 266 
 
 Dixon, Re [168] 
 
 " V. Evans 71 
 
 Pj-ner [2()0] 
 
 Dobson V. Dobson , 277 
 
 Dodge V. Clapp [256], [264], [266] 
 
 Dodkin v. Brunt [164] 
 
 Doe & Fraser v. Eaglesum [129] 
 
 " V. Martin 30 
 
 '• Read [199] 
 
 Dolman, Re [127] 
 
XXIV. 
 
 TABLE OF CASES. 
 
 
 Drape 
 
 PAGE. 
 
 Domville v. Lamb 295, [119] 
 
 Doody V. Hif^gina 187 
 
 Dornyn v. Fralick [218] 
 
 Douglass V. Archbutt 318 
 
 Doune v. Hart 195 
 
 Doupe V. Stewart 66 
 
 Dow V. Dickinson 320 
 
 Downey v. Roaf 378 
 
 Doyle V. Anderson S61 
 
 Douglas 361 
 
 Kaufman 145,395 
 
 Drake, Re [134] 
 
 " V. Symes 202 
 
 per. Re [161], [164] 
 
 V. Manchester Ry. Co . . . 284 
 
 Drew V. Clifford ,,.. ri26; 
 
 Drewe, Re [163 
 
 Drewry v. O'Neil [210], [223^ 
 
 Drinan v. IVIannix 381 
 
 Driver, Re [162], [163] 
 
 Drummond v. Anderson 330 
 
 Dryden v. Frost 396 
 
 Duckett V. Grover 201, 264 
 
 Dudley v. Berzy [209] 
 
 Duflf V. Barrett 79 
 
 Duflfy V. Qonnor 161 
 
 Duggan.Re [113] 
 
 •• V. Cotton [1271 
 
 Duggan's Trusts, in Re 383 
 
 Duke of Sutherland t. Tunstall 
 
 Board 247 
 
 Duncombe v. Lewis .... 244, 251 
 
 Dunkirk Colliery Co. v. Lever. 95,96,309 
 
 Dunlevy, Re [241] , 1 260] 
 
 Dunn v. Dowlirig [107] 
 
 McLean 204,251 
 
 Dunt " Dunt [134] 
 
 Durell V. Pritchard [lOi] 
 
 Dumard v. McCleod 79 
 
 Dyce,Re [Ill] 
 
 " Kauffman 234 
 
 Dymond v. Croft 155, 223, 268, 363 
 
 Eade v. Jacobs 276 
 
 Padie v. McEwen 334 
 
 Earl of Tyrone v. Marquis of 
 
 Waterford 295, [120] 
 
 Early, Re [114] 
 
 " v. McGill 312 
 
 Earp v. Henderson 221, 243, 244 
 
 Bast, Re [166] 
 
 Eastman v. E"«tman 134 
 
 Eastwood v. Lever [101] 
 
 Eaton, Re, Byers v. Woodbum . . 195, 
 
 [229], [255] 
 
 Eberts v. Eberts [238] 
 
 Ebres v. Ebrea 297 
 
 Eccles, Re. [128 
 
 " V. Carroll, Re 128 
 
 " Johnson [126 
 
 Eden v. Naish 4t 
 
 Edge V. Duke 251 
 
 Edgson V. Edgson 149 
 
 Edmonds v. Foley 282 
 
 Edmunds v. Ackland [182] 
 
 " The Attorney-General 46 
 
 PAQK. 
 
 Edward v. Lowther 182, 202 
 
 Edwards, Re [141 
 
 V. Burke .". . 379 
 
 Burling [2091 
 
 Edwards 58, 103 
 
 " Lawless 126' 
 
 Millbank 295, [120; 
 
 Edwin Owen & The London and 
 North- Western Ry. Co. , Re ... . 391 
 
 Eggington v. Cumberlege [126] 
 
 Egremont Burial Board v. Egre- 
 
 mont Iron Ore Co 283 
 
 Ekart v. McCall 346 
 
 Elberton v. Thirsk .%5 
 
 Eldridge v. Burgess 304, 3^*5 
 
 Elgar, Re [141' 
 
 EUerthorpe, Re 150 
 
 Elliott, Re [141" 
 
 " v. Beard 149 
 
 " Hunter i213], [225 
 
 " Jayne 49 
 
 " Northern Assurance Co. 391 
 
 '• Pinkerton [121 
 
 Ellis, Re [157], [158 
 
 " V. Desilva 378 
 
 " Guitton [119 
 
 " Munsen 39,231 
 
 Ellison, Re [163], [164] 
 
 " V. Ellison 143 
 
 " Thomas [192] 
 
 Elliston V. Robinson 133 
 
 EUwood V. Pierce [235] 
 
 Elmer v. Creasy 288 
 
 Elmore, Re 178 
 
 Elmslie, Re [134] 
 
 Ijlsey V. Adams 242 
 
 Elton V. Larkins 291 
 
 Elwon V. Vaughan 204 
 
 Emery v. "Webster 272 
 
 Emma Silver Mining Co. v. 
 
 Grant 44.299 
 
 Emraett v. Clarke [163] 
 
 Emrich v. Sullivan 191 
 
 Engleheart v. Moore [1261 
 
 English V. English. . .[191], [240], [25P.1 
 
 " Hayman 35', 
 
 English and Scottish Inv. Co. 
 
 V. Gray [2231 
 
 Enthoven v. Cobb 283 
 
 Erie V. Hunt 156 
 
 Erskine, Re [141] 
 
 Erwin v. Powley 148 
 
 Escott v. Escott 269 
 
 Ette, Re [241], [260], [261], [262] 
 
 European Banking Co., Re 162 
 
 Evans, Re [117], [140], [142], [178] 
 
 " V. Buck ...39, 181 
 
 " Coventry 202 
 
 " Gunn 41 
 
 " Root 251 
 
 " Saunders 295, [119] 
 
 Evelyn v. Chippendale 379 
 
 Everett v. Prythergch 250 
 
 Eyre, Re [128] 
 
 " V.Hanson [214] 
 
 " Hughes 37 
 
imm 
 
 TABLE OF CASES. 
 
 XXV. 
 
 FAOE. 
 
 Eyre V. Hughes 32 
 
 " Saunders [119] 
 
 Ewart V. Hutton 224 
 
 Fagg.Re [1391, [1411 
 
 Fa&nerv.Ran M, M 
 
 Fair et al., v. McCrow 74 
 
 FairUnks, Re [134] 
 
 Fairburn v. Pearson 5o 
 
 Fairfield V. Weston 53 
 
 Faithful V. Enen 351 
 
 Falconer, Re [2401 
 
 Fallsv. Powell [182] 
 
 Farer ell v. Wallbridge 345 
 
 Farhall v. Farhall [239] 
 
 Farr v. Sherifff; 162 
 
 Farrant, Re 
 
 Farrell v. Cruikshank. 
 
 [m] 
 
 166 
 239 
 
 Stokes [215], [230' 
 
 Faulder, Re [148^ 
 
 Feaver v. Williams 281: 
 
 Feilder v. O'Hara [185 
 
 Felkin v. Lord Herbert 281 
 
 Fellows, Re [165], [166], [171] 
 
 Fellowes v. Deere 202, 251 
 
 Fefthoulet v. Passavant 250 
 
 Fennal v. Brown 318 
 
 Fenny v. Priestman [261] 
 
 Fentnn v. Crickett 391 
 
 Fenwick v. Fen wick [262] 
 
 Ferguson v. Elliott .... 51 
 
 " English and Scottish 
 
 Invest. Co.... [128], 
 Feme, Ex parte 
 
 Ferrier v. Atwool 281 
 
 Fewv. Guppy 282 
 
 Field, Re [128], [266] 
 
 " V. McArthur 196 
 
 •" The G t North'n Ry. Co.. 377 
 
 " Titmus [186] 
 
 Finch, Re [13.5] 
 
 Finkle v. Date 79 
 
 Finlayson v. Mills 49 
 
 Finnegan v. James , 288 
 
 Finden v. Stephens 262 
 
 Firmin v. Pulham [141] 
 
 Fisher, Re [128], [152], [104] 
 
 " V. Coffey 318 
 
 " Owen 315 
 
 Fisken v. Ince 3.59 
 
 Fitch, Re [1271 
 
 Fitzgerald, Re [112] 
 
 " V. Ludwick 307 
 
 Fitzpatrick v. Wilson [107] 
 
 Fitzsimmona v. Mclntyre 73 
 
 Flake v. Clapp 242 
 
 Fleming, Re [Hi] 
 
 " V.Duncan 79 
 
 " McDougal [238 
 
 Fletcher, Ex parte [140 
 
 Flintoff V. Haynes [187 
 
 Flockton V. Peake 283, 284 
 
 Flower v. Bailer 195 
 
 " Newton [15(6] 
 
 Fluker, Re [1271, [r281 
 
 Foley, Ex parte [127], [156J 
 
 PAGE. 
 
 Foley V. Griffith [190. 
 
 Foligno, Re » ,141, 
 
 Follis V. Todd ,121 
 
 Forbes v. Adamson [206], [216_ 
 
 Connolly 335 
 
 Moffatt 49, 
 
 Ford V. Dolphin 282 
 
 Tenant, 
 
 Forrest v. Laycock 
 
 Forrester, Re 
 
 " V. Davies 
 
 Forsyth, Re {126], 
 
 Fortune, Re 
 
 140], [142 
 Foster, Re [134], [261 
 
 128], 
 
 2H1 
 
 74 
 
 [239 
 
 162' 
 
 133 
 
 " V. Abraham 
 
 1631 
 
 Alvez 36 
 
 " Dawber [163], [164; 
 
 " Emmerson [107 
 
 Foster [239 
 
 Gamgee 230 
 
 Foster's Settled Estates, Re [1J9; 
 
 Fowler v. Knoop and The London 
 
 Banking Associat'n, 39, 206 
 
 " Churchill 141 
 
 " Marshall [^38] 
 
 Reynal 187 
 
 Fox V. Srewer Bros 189 
 
 '* Toronto and Nipissing Ry 
 
 Co 313 
 
 " Wallis 359,368 376 
 
 Fozard, Re [141] 
 
 Francis v. Boulton, Re [101], [1271 
 
 Brown 402 
 
 Fri-income v. Francome 318 
 
 Franklinski V. Ball [101] 
 
 Eraser v Bens [202], [233] 
 
 " Burrows 46 
 
 Home Ins. Co. . . . 280, 282, 283 
 
 Sutherland 187 
 
 Fray v. Voules 71 
 
 Frederici v. Vandergee 175 
 
 Freeborn v. Carroll [238], [260] 
 
 Freeman, Craigie & Proudfoot, Re 76, 
 
 [130 
 
 V.Butler 2r 
 
 Cox 291 
 
 Fairlie [1791 
 
 " Pennington 357 
 
 Stiggal 291 
 
 Friend v. Solly 391 
 
 Frith V. Bush 148 
 
 Frodsham v. Frodsham [167] 
 
 Fromant v. Ashley 133 
 
 Froud v. Stillard [126] 
 
 Fulham, Re [170], [171] 
 
 FuUarton v. Martin 357 
 
 Fuller, Re 
 
 " v. Redman 
 Fullerton v. Keely 
 
 119 
 186' 
 2.57 
 
 Furness v. Booth 20( 
 
 " Mitchell 194 
 
 • ' The Colebarn Railway 
 
 Company 56 
 
 Furnival v. Boyle 70 
 
 Futvoye v. Kennard 345 
 
 Fyson, Re [133] 
 
XXVI. 
 
 TABLE OF CASES. 
 
 PAGE. 
 
 G.v. V 214 
 
 Galbraith v. Armstrong 357 
 
 Gallagher v, Gairdner 275 
 
 Galloway v. Corporation of Lon- 
 don [128] 
 
 Gait V, Spencer 379 
 
 Gandeey. Stansfield 281 
 
 Ganson v. Finch 379 
 
 Garbutt v. Fawcus 34, 45 
 
 Gardner, Re [151 
 
 " V. Cowles .... [148], [174], [175 
 
 Gardiner v. Garret [239 
 
 Irwin 280 
 
 Garland, Ex parte 54 
 
 V.Garland [197] 
 
 Garnet V. Bradley 377 
 
 Gartside, Re [162] 
 
 Garty, Re [162], [163] 
 
 Gaskinv. Ball 56 
 
 Gates V. Buckland 391 
 
 " Crooks 339 
 
 Gath V. Webster 179 
 
 Gauntv. Taylor 162 
 
 Gedye, Re [129" 
 
 Geggv. Taylor W 
 
 Geldard v. Hornby 214 
 
 Gemmell V. Burn [222 
 
 Gibbv. Murphy 376 
 
 Gibbons v. London Financial As- 
 sociation 376, 395 
 
 Gibbs V. Cruickshank 50 
 
 David 363 
 
 Gibson v. Jeyes [Ill] 
 
 Giddings v. Giddings 382 
 
 Gidlestone v. Lavender [206] 
 
 Gilbert v. Braithwaite 24 
 
 " Endean 46 
 
 " Smith 328 
 
 Gildersleeve v. Cowan 259 
 
 " McDougal 157 
 
 Giles V. Benjamin 197 
 
 PAOK. 
 
 186] 
 134 
 164 
 268 
 
 Gilespie v. Alexandei 
 
 Shaw 339, 
 
 Gillett, Re 
 
 Gillotv. Ker 
 
 Gilmour v. Meyers [214], [2321 
 
 Girdlestone v. Gunn [216], [2;i5J 
 
 Girvin v. Grepe 175 
 
 Gladstone v. Ottoman Bank 262 
 
 Glass, Ex parte [128], 
 
 " v. Moore 
 
 " Munsen 258 
 
 Gledhill V. Hunter 214 
 
 Gleggv. Rees 187 
 
 Glen v. Lewis 237 
 
 Glenham v. Stutwell [123] 
 
 Goddard v. Parr 250, 311 
 
 Godden V. Corsten 236 
 
 Godfrey v. Harrison 194, [260] 
 
 Goggs V. Lord Huntingtower. . . . 147 
 
 Goldie V. Shuttleworth 291 
 
 Golding V. Wharton Rail and 
 
 River Salt Co 222,250 
 
 Goldsmid v. Stonehewer 186, 187 
 
 Goldsmith v. Goldsmith 74 
 
 Goodall v. Burrows [216] 
 
 Goodchap v. Weaving 282 
 
 Goodday v. Sleigh 242 
 
 Goode V. West [139 
 
 Goodfellow, Re [lia 
 
 " v. Rannie [262' 
 
 Goodman v. Whitcomb 5B 
 
 Goodtitle v. Badtitle 342 
 
 Goodwin v. Goswell [125 
 
 Goodwin's Settled Estates, Re. . . [US' 
 
 Gordon v. Calvert [199 
 
 Eakins [22tf 
 
 Great Western Ry Co. 78, 7§ 
 
 " Hanna 148 
 
 GorhaTtt v. Gorham. .[256], [259], [265] 
 
 Gossip V. Wright 246 
 
 Gott V. Gott [105^ 
 
 Gough V. Bage [160], [167], [173' 
 
 Gould V. Burritt [179], [196' 
 
 •' Rich 79 
 
 Gouthwaite v. Rippon 251 
 
 Gover v. Street 39 
 
 Gracey v. Gracey [103 
 
 Graham v. Campbell 72, 36< 
 
 Davis 357, [209' 
 
 " Robson. . . [241], [253], [26i; 
 
 Grand Junction \. Bickford [223' 
 
 Grane v. Cooper 28! 
 
 Granger v. Latham [205 
 
 Grant, Re [170], [171 
 
 " V. Banque Franco, Egypt- 
 
 ienne 313 
 
 " Corporation of City of 
 
 Hamilton 339 
 
 " Eddy 256.2.57 
 
 " Grant [;i63] 
 
 " Holland, Ross v. Grant. 28, 6^ 
 
 135 
 
 " Winchester 379 
 
 Gray v. Lewis 184 
 
 Great Australian Gold Mining 
 
 Co. V. Martin 159 
 
 " Northern Committee and 
 
 Mett, Re 378 
 
 " Western Colliery Com- 
 pany V. Tucker 288 
 
 Green, Re ; [1781 
 
 " V. Adams [218], [2221 
 
 " Aimey 286 
 
 " Charnock 379 
 
 Sevin 41 
 
 Greene, Re. , [118] 
 
 Greenhill 405 
 
 Greenshieldi? v. Blackwood. .[215], 
 
 Greenwood, Re 
 
 Greer, Re J[161], 
 
 Greet v. Citizen's Insurance 
 
 fi'!' 
 
 217" 
 '230 
 133" 
 17i; 
 
 Gregson, Re 282 
 
 Greig v. Somerville [186] 
 
 Gresley v. Mousley 281 
 
 " ■ "119" 
 
 126" 
 1713 
 262 
 199 
 14^ 
 
 <lrey v. Jenkins 
 
 Gridley v. Austen 
 
 Grierson v. Astle 
 
 Griffith V. Foster 
 
 Griffith [198], 
 
 Griffiths V. Cowper 
 
M^imw^wm 
 
 TABLE OF CASES. 
 
 xxvu. 
 
 PAGE. 
 
 282 
 
 242 
 
 [139] 
 
 [119" 
 
 [262: 
 
 i 
 
 Re... 
 
 342 
 125] 
 118] 
 199] 
 226] 
 y Co. 78, 79 
 
 148 
 
 [259], [265 
 
 24b 
 
 1051 
 
 [167], 
 
 :i731 
 
 [179], [196' 
 
 79 
 
 251 
 
 39 
 
 [103] 
 
 72, 364 
 
 . . 357, 
 [^53], 
 
 209] 
 
 [261] 
 
 223] 
 
 283 
 
 [205] 
 
 [170], [171] 
 Jgypt- 
 
 313 
 
 ity of 
 
 339 
 
 ....256, 257 
 
 [163] 
 
 rant. 28, 62, 
 135 
 379 
 184 
 
 [ining 
 e and 
 Com- 
 
 159 
 
 378 
 
 288 
 [1781 
 [218], [2221 
 28& 
 379 
 41 
 [118] 
 405 
 217 
 '230 
 133 
 171 
 5] 
 
 282 
 [186] 
 281 
 119 
 126 
 171 
 262 
 199 
 148 
 
 .[215], 
 
 .[161], 
 
 ■8 
 
 283 
 164 
 234 
 163 
 
 PAGE. 
 
 Grimshawe v. Parks. .[195], [212], [220], 
 
 White 167 
 
 Groom, Eg J^l 
 
 Grove v. Sanson U^< J 
 
 " Young 312 
 
 Groves v. Groves 
 
 Grundy v. Buokeridge 
 
 Guest V. Smy the 
 
 Guibert, Re - ^ 
 
 Gunn V. Adams • • • « 
 
 " Doble 150,r234 
 
 Gunnell v. Whitear [138], 142 
 
 Gunson v. Simpson [164J, [173 
 
 Guyv.Guy 189 
 
 Gynne V. Rees <*^" 
 
 Gzowski V. Beatty |2281 
 
 H's. Estate, Re ^,56 
 
 Hadjey, Re [162 
 
 Hagarty v. Hagarty [103 
 
 Haig V. Grey 184 
 
 •' Oussey [126 
 
 Hair, Re [127], [128], [130. 
 
 Haisley, Re ^„ 51 
 
 HakeweU.Re 58,60 
 
 " V. Webber . . . ; 303 
 
 Halford v. Yate [214] 
 
 Hall, Re [124], [125], [138] 
 
 " V. Austin 184 
 
 Hall V. Eve .221, 243, 244 
 
 Halliday,Re 62 
 
 Halliman v. Price 42 
 
 Halliwell v. Counsell 256 
 
 Halloway V. York 40 
 
 Hamelyn v. White 280, 281, 283 
 
 Hamer V. Giles ; Giles v. Hamer.350, 378 
 Hamilton & N. W. Ry. Co. v. 
 
 County of Halton. 54 
 
 V. 0'ReiUy,Re [1241 
 
 Brewster [199] 
 
 Davies 148 
 
 Howard [211], [224] 
 
 Johnson -....325,326 
 
 Hampson v. Hampaon 281 
 
 Hamner v. Flight 176, 221, 225 
 
 Hammond v. Walker 148 
 
 Hancock v. Guerin 279 
 
 Hancox v. Spittle [156 
 
 Handley v. Davis [138], 141; 
 
 Hankey v. Morley ■ [141 
 
 Hanman V. Riley 186, 187 
 
 Hansard v. Hardy 242 
 
 Hansen, Re 116 
 
 Hansford, Re [140] 
 
 Hanslip v. Kitson 219, 280 
 
 Hardcastlev. Maryland and Dela- 
 ware Railway Co 54 
 
 Harding, Re [134 
 
 Hardley, Re [139 
 
 Pardman, Ex parte [166 
 
 Hardwick v. Wright [188' 
 
 Hardford, Re [163;^ 
 
 Hargrave v. Hargrave 33( 
 
 Hargreave's Settled Estates, Re.. [119 
 " V.Scott 39l 
 
 FAOB. 
 
 Hargreave v. Wright [15.0], [161]; [167.1 
 
 Harkness v. Conway [107. 
 
 Ham V. Ham [105 
 
 Harnett v. Yielding 5! 
 
 Harper, Re [134 
 
 Harper v. Harper 16s 
 
 Harris, Ex parte [166', [170. 
 
 ' ' V. Aaron 72 
 
 " Andrews 165 
 
 «« DeTastet [186] 
 
 " Fleming ; 157,159 
 
 Gamble . . 33, 38, 206, 218, 303 
 
 Harris [1621 
 
 " Meyers . . 51 , 335, 337, 345, 359 
 
 368 
 " Owners of Franconia. . 158 
 
 " Petherick 377 
 
 Start [127] 
 
 " Warre 222,224 
 
 Harrison, Re [162], [165] 
 
 " V. A. & B., Re [124] 
 
 " Bottenheim 176 
 
 Grier [211] [225] 
 
 " Lentuer 241 
 
 •' Patterson [179] 
 
 » Smith [160] 
 
 Harrold v. Wallis 56 
 
 Harry v. Davey 202, 207 
 
 Hart V. Lever 148 
 
 Hart V. McQueston 49 
 
 Hart V. Montefiore 279, [186] 
 
 Hartley, Re [130], [133] 
 
 " V. Dilkie 149 
 
 Owen 288 
 
 Shernwell 346 
 
 Hartnall, Re [157], [158] 
 
 Harvey, Re [153] 
 
 " V.Clark [118] 
 
 O'Meara 141 
 
 Smith 379 
 
 Flaskins v. Cannon 172 
 
 Hastings v. Hurley 155, 395 
 
 Hatch V. Searles [187] 
 
 Hatt V. Park 213] 
 
 Hattal, Re [1631 
 
 Hawford v. Lloyd 288 
 
 Hawes v. Bamford 318, 396 
 
 Hawkesley v. Bradshaw 270 
 
 Hawksworth v. Hawksworth ... 59 
 
 Hay V. McArthur [222] 
 
 Haycock, Re [138], [140], [141] 
 
 Hayes v. Hayes 2291 
 
 Hayney, Re !1401 
 
 Hazard v. Lane 1127] 
 
 Hazel wood v. De Bergue 349 
 
 Headen v. Rosher 195 
 
 Headington, Re [138] [141] 
 
 Heald v. Hay 148 
 
 Heales v. McMurray 50 
 
 Heap V. Morris 222. 260 
 
 Heard v. Cuthbert . [170] 
 
 Hearne v. Tennant 51 
 
 Hedley v. Bates 47, 56 
 
 Heely, Re [204], [236] 
 
 Heighington v. Grant 42 
 
 Hei&rich t. Sutton 162 
 
XXVlll. 
 
 TABLE OF CASES. 
 
 FAGS. 
 
 Heming, Ex parte [134], [1411 
 
 " V. Leifchild 391 
 
 •• Wilton [130] 
 
 Henderson v. Buskin [103] 
 
 Cook 258 
 
 McMahon 143 
 
 Heney v. Low 49 
 
 Henna v. Dunn [185] 
 
 Hennesy. v Bowman , 364 
 
 Hercy v. Commercial Bank 339 
 
 Henahaw, Re [138] 
 
 Herbert, Re [165] 
 
 Hercy v, Ferrers 282 
 
 Heron v. MofiFatt [179] 
 
 Herring v. Clark [173] 
 
 Herz V. Union Bank of London . 32 
 
 Heugh V. Chamberlain 249, 250 
 
 " ' "•' ■ ""-" -^233' 
 
 [200],. . 
 
 [155], [171 
 [238 
 260 
 
 Howard v. Ridout 
 Hewitt, Re 
 
 Heywoou v. Sievwright 
 Hicks V. Rainacock .... 
 
 Higginbotham v. Aynsley 233 
 
 Hawkina 48 
 
 Higgina v. Manning 379 
 
 " Woolcot [130] 
 
 Higginaon v. Hall 280 
 
 Highton V. Treherne 78 
 
 Hillv.HiU 69 
 
 " Ironsides [137] 
 
 " RimeU 367 
 
 " Walker [186] 
 
 Hilliard, Re [164] 
 
 Hills V. McCrae 184 
 
 " The LondonGas Light Co 291 
 
 Hindley v. Emery [101] 
 
 Hinton, Re [127] 
 
 Hipwell V. Knight 51 
 
 Hirons, Re, Foster v. Hirona [264] 
 
 Hoare, Re 342, [119], [141] 
 
 " V.Wilson 284 
 
 Hobbs V. Reid 199 
 
 Hobby V. Pritchard [127] 
 
 Hobhouse v. Hollcombe [ 198] 
 
 Hobson V. Wadsworth 162 
 
 •• Sherwood [198] 
 
 Hoby V. Hitchcock . . 379 
 
 Hodges, Re. . .[137], [140], [151], [153], 
 
 [155] 
 
 " v.Hodgea 237,259 
 
 " Fincham 342 
 
 Hodkinson v. French [219], [237] 
 
 Hodson, Re [1621 
 
 •' V. Cash 162 
 
 " Drewery 71 
 
 " Mochi 38 
 
 Hoflfman V. Postman 288 
 
 Holland, Re [128] 
 
 " & Walsh, Ex parte .... [183] 
 Hoole V. Great Western Ry. Co. 197 
 
 HoUingaworth v. Brodrick 3()1 
 
 Holloway V. Phillips 402 
 
 Holmea, Re [Ill] 
 
 " V. Tutton 351 
 
 Holt V. Jease 70 
 
 Home Aaaaurance Aaaociation, 
 Ref 3801381 
 
 PAGE. 
 
 Honduraa Inter-Oceanic Ry. Co. 
 V. Lefevre ... .181, 182, 185, 202, 221 
 
 48 
 94 
 
 133 
 [1781 
 
 154 
 
 Honywood v. Honywood. 
 
 Hooch V. Boor 
 
 Hoodaall v. Baxter 
 
 Hooper, Re 
 
 V. Burley 
 
 Gumm 281,283 
 
 Maitland 190 
 
 " Strutton [151] 
 
 Hope V. Banka 250 
 
 •' Carnegie 71, 148 
 
 " Hope 148,312 
 
 " Liddell 282 
 
 " Threfal 318 
 
 Hopgood V. Parkin 71 
 
 Hopkinson v. Lord Burghley .... 283 
 
 Hopper V. Harrison [191]. [254] 
 
 Horkins v. Harty 151 
 
 Hornerv. Kerr 192, 193 
 
 •Horsley V. Fawcett 187 
 
 Horton, Re [261] 
 
 Horwell v. The London General 
 
 Omnibus Co 207 
 
 Hoskins, Re 71, 378, [141], [166] 
 
 Houlding V. Poole 186 
 
 Houseman ". Houseman 46 
 
 Ho vey V. Ferguson [107] 
 
 Howard v. Brown 231 
 
 Macara [214] 
 
 " Robinson 283 
 
 ' ' Re Padley v. Camphau- 
 
 sen 156 
 
 Howcut V. Rees 274 
 
 Howe V. Howe [104 
 
 Hunt [101' 
 
 " Kernon [283' 
 
 " Machine Co. v. Walker.. 156 
 
 Howell V. McFarland 51 
 
 West 213 
 
 Howeren v. Bradbum [2221 
 
 Howkins v. Bennett 148 
 
 Rowland v. Grierson 154 
 
 Hewlett V. Wilbraham 152 
 
 Houston V. Briscoe 357 
 
 Hubbard, Re 391, [135 
 
 V. Hubbard [160 
 
 Hue, Re [141 
 
 Huggina v. Guelr*- Jarrel Co. . . 23j 
 
 Huggona v. Tweed 43, 219 
 
 Hughea, Re [1C4] 
 
 " V. Hughea 277 
 
 " Jones 303 
 
 " Metropolitan Ry. Co 44 
 
 Wills [1671 
 
 Hulcomb V. Leach 393 
 
 Hulme V. Tenant 190 
 
 Humber Iron Works, Re. 
 
 Hume V. Burton 
 
 Humphrey, Re 
 
 Hunt V. Hunt 
 
 " Passmore . . . 
 
 Hunter v. Daniel [123 
 
 " Young 208 
 
 Hurie's Settled Estates, Re [119] 
 
 Hurst V. Hurst 148 
 
 162 
 
 1091 
 
 [162' 
 
 103' 
 
 33d 
 
TABLE OF CASES. 
 
 XXIX. 
 
 PAGE, 
 r. Co. 
 
 .85, 202, 221 
 
 48 
 
 94 
 
 133 
 
 [178] 
 
 154 
 
 ....281,283 
 190 
 
 [1511 
 
 250 
 
 71, 148 
 
 ,...148,312 
 
 282 
 
 318 
 
 71 
 
 (v.... 283 
 tl91], [254] 
 
 151 
 
 ....192,193 
 
 187 
 
 L261] 
 
 eneral 
 
 207 
 
 [141], [1661 
 186 
 
 46 
 
 .... [107] 
 
 231 
 
 [2141 
 
 283 
 
 156 
 274 
 104 
 101" 
 283' 
 156 
 51 
 .. . 213 
 .... [2221 
 148 
 .... 154 
 
 152 
 
 ... 357 
 391, [13.5] 
 .... [160' 
 .... [141 
 Co. . . 231 
 .43, 219 
 
 iphau- 
 
 Iker. 
 
 ly.Co 
 
 27' 
 
 303 
 
 44 
 
 [167 
 
 391 
 
 190 
 
 162 
 
 109] 
 
 162] 
 
 1031 
 
 339 
 
 [1231 
 
 208 
 
 [1191 
 
 148 
 
 FAOB. I 
 
 Hurst V. Padwick 379 
 
 Husband, Re • • ■ • • ^^f^ 
 
 Hutchinson, Re [119]. [140] 
 
 " V. Glover 280 
 
 «» Sargent [239] 
 
 Stephens.... [151], [152] 
 
 Hyde v. Warden 57 
 
 Hymans v. Roots 74 
 
 Ilderton, Re • [128] 
 
 Imperial Bank v. Sumerfeldt o2J 
 
 •' "of China v. Bank 
 
 Hindostan 380 
 
 " Loan & S. Co, v. Boul- 
 
 ton [221] 
 
 Inchley v. Allslop 357 
 
 Ingilby V. Shafto 281 
 
 Inlle.Re [128] 
 
 Inglis V. Beaty [185] 
 
 " Wellington Hotel Co. . . 132 
 International Financial Society v. 
 
 Moscow Gas Company 78, 405 
 
 Irby, Re [138] 
 
 Irving V. Boyd 335 
 
 «' Munn [219] 
 
 Strait 148 
 
 Ivory V. Cruikshank 336, 355 
 
 Jack, He, Jack v. Jack [241], [261], [262] 
 
 Jackes, Re 116 
 
 Jackson v. Gardner 359, 368, 376 
 
 Jackson 335, [103] 
 
 Milfield [148] 
 
 . " N. E. Ry. Co 3.55,356 
 
 North VVales Ry. Co. 263 
 
 Randall 140 
 
 " Robertson 248 
 
 Spittal 157 
 
 " Wa.vd 359 
 
 Jacob, Re [178] 
 
 Jacobs V. Magnay 164 
 
 James v. Crow 304 
 
 " Robertson 169 
 
 Jameson v. Jones 312 
 
 " Lang 143 
 
 Jardine v. Wood [186] 
 
 Jarvis v. Great Western Ry. Co . [128] 
 
 " Stinson 77 
 
 Jay v. MacDonnell [196] 
 
 Jebb V. Tugwell 357 
 
 Jefferson v. Warrington [127. 
 
 Jeffrey v. Drysdale 'l67 
 
 Jeffreys v. Evans [126 
 
 Jellett v. Anderson [22'J 
 
 Jenkins, Re [140 
 
 •• V. Davies 32ii 
 
 •' Martin [106] 
 
 Jenkyn V. Bushby 281 
 
 Jenour v. Jenour [123] 
 
 Jephson, Re [139], [140] 
 
 Jervoise v. Clark '202] 
 
 Jesse V. Bennett 201, 260] 
 
 Jessop, Re [133] 
 
 Joddrell v. Joddrell 250 
 
 Johnasson v. Bonhole 263 
 
 Johns v. James 276 
 
 PAOE. 
 
 Johnson v. Ashbridge [214], [232] 
 
 " Barnes 135 
 
 " Brown 296 
 
 Gallagher 190,191 
 
 " Johnson 327 
 
 Peck [123] 
 
 •• Trustees of Public 
 School Section No. 1, Township 
 
 of Howard 330 
 
 Joint Stock Discount Co., Re . . . 284 
 Jones, Re, [130],[13H],[138],[142],[170] 
 
 " Eyre v. Cox 145, 395 
 
 " V. Chennell 73 
 
 James 201, [1651 
 
 •' Jenner 352 
 
 Jones 283, [259] 
 
 Joyce, Re [148], [162] 
 
 Junkin v. Junkin 380 
 
 Jupp V. Cooper 346 
 
 " Geering [123] 
 
 Kadehelm, Re [158], [165] 
 
 Kahn V. Redford 275 
 
 Kay V. Hargreaves 281, 288 
 
 Keate v. Phillips 202 
 
 155] 
 
 114] 
 
 126] 
 
 51 
 
 Keeler, Re [153], 
 
 Keenan, Re 
 
 Keene v. Ward 
 
 Keiffenstein v. Hooper 
 
 Keim v. Yeagley 387 
 
 Keith V.Keith [105] 
 
 " Lynch ... 276 
 
 Kellaway v. Johnston 187 
 
 Kelly.Re [108] 
 
 *' V. Macklem 161 
 
 Kemp V. Jones 251 
 
 " Mackerel [123; 
 
 Kemptner, Re [138 
 
 Kenaway v. Tripp 37$ 
 
 Kennedy, Re [116' 
 
 " v. Brown 74 
 
 Lawlor 290 
 
 Pingle [179], [253] 
 
 " Royal Insurance Co, 284 
 
 Kensington v. DoUand 189 
 
 Ker.Re [1321 
 
 Kernick v, Kernick 311 
 
 Kerr, Re [130^ 
 
 " V. Finlayson 246, 248 
 
 " Grand Trunk Ry. Co . . 306 
 
 '« Murray 187 
 
 Kettlewell v. Barstow 283 
 
 Keysand Smith & Henderson, Re [125] 
 
 Kidd V. Cheyne [192] 
 
 Kilkenny, etc., Ry. Co. v. i'eildon. 141 
 
 Kimpton v. Eve 365 
 
 Kincaid v. Kincaid [237] 
 
 Kindull v. United States 64 
 
 King,Re [124] 
 
 " v. Bryant 345 
 
 " Connor [196], [214], [231] 
 
 " Corke 246 
 
 " Davenport 265 
 
 •• Freeman [209], [223] 
 
 • " Greenhill 58 
 
 " Keating 187 
 
XXX. 
 
 TABLE OF CASES. 
 
 If:,.,. 
 
 PAGE. 
 
 Kingv. King [171] 
 
 Kudkin 358 
 
 Smitli [170] 
 
 King of Hanover v. Bank of Eng- 
 land [162] 
 
 Kingchurch v. The People's Gar- 
 den Co 45 
 
 Kingsford v. Swinford 33 
 
 Kingsland, Re [138 
 
 Kinneir, Re [134 
 
 Kinov. Rudkin 203,24V 
 
 Kirchoffer v. Stafford [215" 
 
 Kirkpatrick v. Howell [209], [258" 
 
 Poweil [223_ 
 
 Kitching v . Kitching 21' : 
 
 Kitchen v. Kitchen 225 
 
 Kline v. Kline [256] 
 
 KnatchbuU v. Fowle 310, 318 
 
 Knight, Re [141] 
 
 " V.Cory 379 
 
 Knight [174] 
 
 Knott V. Cottee [2J0] 
 
 Knottinger v. Barber [217], [230] 
 
 Knowlton v. Knowlton 380, 381 
 
 Knox V. Brown 242 
 
 Koen V. Koen 161 
 
 Korman v, Tookey 391 
 
 Kraemer v. Glass 191 
 
 Krehl V. Burrell 75 
 
 " Park 72 
 
 Kuch V.Hall 50 
 
 L. & M., Re, Solicitor" [124] 
 
 Labadie v. Darling 129, 138 
 
 Laidlaw v. Jackea [201] 
 
 Laing's Settled Estates, Re [118] 
 
 Laird v. Briggs 77 
 
 Laird v. Stanley 277 
 
 Lakev. DeLambert [163] 
 
 Lamb v. Allen 61 
 
 Sutherland 51 
 
 Lanaghan v. Smith [259] 
 
 Lancaster v. DeTrafiford ....... [101] 
 
 Land Credit Society, Re 281 
 
 Lane, Re [138], [141] 
 
 " V. Debenham 295 
 
 " Glenny [126] 
 
 iangley. Re 335 
 
 V. Earl of Oxford 291 
 
 Langridge v. Campbell 272, 376 
 
 Large v. Large 129 
 
 Larkin v. Armstrong [195], [264] 
 
 Lash, Re [137' 
 
 Lashley V. Hogg [186], 
 
 Laslett V. CliflFe 
 
 Laundy v. Roe 154 
 
 Law V. London Indisputable 
 
 Policy Co 280 
 
 Lawrence, Re [140] 
 
 " V.Campbell 2sl 
 
 " Humphreys [220] 
 
 Lawson v. Laidlaw. . .190, 192, 195, 196 
 
 '215" 
 234 
 141 
 
 JJ, L-iOIJ 
 
 .. [137] 
 
 )], [246] 
 
 . [2061 
 
 Layard v. Maud. 
 Laycock, Re . 
 Lazarus, Re. 
 
 V. Mozeley 280, 281 
 
 PAGB 
 
 219 
 155 
 141 
 80 
 
 44 
 
 352 
 283 
 339 
 
 Lazier v. Ranney 
 
 Lea, Re 
 
 Leake, Re 
 
 Learning v. Moore 
 
 Lechmere v. Clamp .. [151], [161], [1671 
 
 Ledyard v. McClean . . 19o 
 
 Lea v. Colyer 
 
 " Gorrie 
 
 " Hammerton 
 
 Leening v. Hagarman 
 
 Lees, Re : . . . [130], 
 
 " v. Coulton 
 
 " Patterson 40, «^, 
 
 Legg V. Mackrel [162], [171 
 
 Winstanley 148 
 
 Legge, Re [119 
 
 Legh,Re. [llf 
 
 Leibes v. Ward, Re 65 
 
 Leigh, Re 61, 95, 96, 293 
 
 " V.Brooks 94 
 
 Leishman v. Eastwood 197 
 
 Lemon & Peterson, Re ... . [128], [131] 
 
 Lenaghan v. Smith 201 
 
 Lepsey v. Cruise 148 
 
 Leslie v. Hambleton [225] 
 
 Thompson 295, [120] 
 
 Lesslie v. Leaby 291 
 
 Lester v. Archdale 231, 244, 252 
 
 " Lazarus * [126] 
 
 Lett, Re [127], [1341 
 
 " V. Parry 288 
 
 " The Commercial Bank of 
 
 Canada 192 
 
 Lewers v. Earl of Shaftesbury . . [101] 
 
 Lewes, Re [170] 
 
 " V. Morgan 365 
 
 Lewin, Re [1271 
 
 Lewis, Re [128], [135] 
 
 " V. Barkes 361 
 
 " Hillman [141] 
 
 " Howell 291 
 
 " Primrose [1261 
 
 Ley V. Brown [1321 
 
 Liddiard, Re [163] 
 
 Lidlitter v. Long 262 
 
 Life Association of Scotland v. 
 
 Walker [179] 
 
 Lincoln P. Methodists, Re [162] 
 
 Lind V. Isle of Wight Ferry Co.. 281 
 
 Lind. ay v, Gladstone 284 
 
 Lindsay Petroleum Co. v. Pardee 278, 
 
 280. 285 
 
 Lister v. Leather 242 
 
 Little, Re [166] 
 
 '• v. Brunker [2281 
 
 Litton v. Litton 328 
 
 Livingstone v. Wood [264] 
 
 Lloyd, Re 58, [138], [140], " 
 
 •' V. Dimmack 184, ""^ 
 
 " Smith 184 
 
 " Solicitors' Life Ass. Co. 165 
 
 " Wait [184] 
 
 " ~ ■ 176 
 
 , . . . 020 
 
 .... [264] 
 L40], [187] 
 4, 355, 356 
 
 Lloyd's Banking Co. v. Ogle 
 Lockart v. Gray . . 
 '* Hardy 
 Lockett V. Carry . 
 
 349 
 
 [127; 
 28: 
 
TABLE OF CASES. 
 
 XXXI. 
 
 PAGE. 
 
 Lockett V. Lockett 288 
 
 Lockw(jod V. Nash 353 
 
 Lodse V. Pritohard [188] 
 
 Lomax v. Kilpin 162 
 
 London & Canadian v. Everett. . [224] 
 '< " Morrison. [207], 
 
 [22V] 
 " " Pulford . [207], 
 
 [227], [235] 
 " Birmingham and Bucks 
 
 KyCo., Re 97 
 
 " Syndicate Co. v. Lord. . 290 
 
 Long V. Crosaley 203 
 
 •^ Long 335 
 
 Longman v. East 92, 94, 95, 9f) 
 
 Longstaffe'a Settled Estates, Re . [119" 
 
 Lonsdale, Re [166 
 
 Lord, Re [1891 
 
 " V. Purchase 56 
 
 " Cardross, Ex parte [126] 
 
 ' * Compton V. Oxenden 49 
 
 " Darnley v. L. C. & D. 
 
 Railway 246 
 
 ' ' De Tabloy's settled estates, 
 
 Re [119] 
 
 " Eglinton v. Lamb 282 
 
 " Hanmer v. Flight . .176, 221, 225 
 " Huntingtower v. Sherborn 128 
 " St. John V. Lady St. John 250 
 
 " Ward's Case [Hi; 
 
 Lorenz, Re [178" 
 
 Lorimer, Re [142_ 
 
 Loveden v. Milford 312 
 
 Loveless v. Richardson 342 
 
 Lowe V. Lowe 75 
 
 Lowes V. Lowes 357 
 
 Lowry, Re [148], [151], [161] 
 
 Lows, Re 304 
 
 Lowden v. Mayor of Colchester. [123] 
 
 Luck V. Handley 235 
 
 Ludgater v. Channell [199] 
 
 Luke V. South Kensington Hotel 
 
 Co 202 
 
 Lumley v. Hughes 379 
 
 Lund v. Blanchard [260] 
 
 Lunda v. McCulla 34 
 
 Lundy v. Dickson 349 
 
 Lunn, Re [158] 
 
 Luther v. Ward 382 
 
 Lydall v. Martinson 249, 306 
 
 Lyon V. Tweddell 276 
 
 Lyons v. Blenkin ' 189 
 
 Lysaght v. Edwards [151] [161] 
 
 Lyttleton v. Cross 233 
 
 MacAllister v. the Bishop of Ro- 
 
 Chester 208 
 
 Macan v. Borradaile 381 
 
 Macauley v. Rumball 350 
 
 MacDonald, Re [128], [133] 
 
 " V. Bode 44 
 
 Carrington.381, 215, 219 
 
 Macdonald [^105] 
 
 MacDonnell v. Street 251 
 
 McKay 283,284 
 
 Machar v. Vandewater 330 
 
 « 
 II 
 
 56 
 
 218 
 215 
 366 
 
 77 
 
 PAOB. 
 
 Machell v. Campbell [207 J 
 
 Mack V.Ward 397 
 
 Mackenzie v. Mackenzie 318, [157] 
 
 Mackereth v. Glasgow and South 
 
 Western Railway Co 154 
 
 Maclean v. Draper 56 
 
 Macpherson V. Macpherson [105^ 
 
 Maddison v. Chapman [240 
 
 " Skein [119 
 
 Main v. Kerr [209], [224; 
 
 Mainwaring, Re [157 
 
 Mais, Re [1621 
 
 Maitland v. Second 339 
 
 Major V. Lamsley 195 
 
 Malcolm C. Cameron, Re [128] 
 
 " O'Callaghan [199] 
 
 Male V. Bouchier 337 
 
 Malins v. Greenway [123] 
 
 ?vIallinson v. Mallinson 60 
 
 Manley v. Berwicke 280, 282, 379 
 
 Manchester and Milford Railway 
 
 Co., Re 
 
 Manchester, Sheffield, and Lin- 
 colnshire Railway Company 
 and the London and North- 
 western Railway Company v. 
 
 Brooks 38 
 
 Mainsty v. Kenealy 
 
 Mann v. Perry 
 
 Mansel, Re, Rhodes v. Jenkins . . 
 
 '• V. Feeney 281,284,288 
 
 Mansfield v. Childerhouse 276 
 
 Mant V. Smith [126] 
 
 Martindale v. Clarkson, Re.... [220] 
 
 Marbury v. Maddison 54 
 
 Marker v. Marker 48 
 
 Markham, Re, Markham v. 
 
 Markham 80 
 
 Marner, Re 1 119; 
 
 Marnes, Re [140 
 
 Marquis of Bute's Will, Re [152 
 
 ' ' Londonderry v. Rhos- 
 
 i wydol Lead Mining Co 204 
 
 Marriott v. Anchor Reversionary 
 
 Co 281 
 
 Kirkham 187 
 
 Marriott's Trusts, Re [163] 
 
 Marrow, Re [170] 
 
 Marsden v. Lancashire and York- 
 shire Railway Co 75 
 
 Marsh v. Attorney-General [178] 
 
 " Beard 379 
 
 Keith 281 
 
 Marsh .... [241], [261], [262] 
 
 Marshall, Re [163], [166 
 
 Martin, Re [125 
 
 " v. Headon [101 
 
 •' Purdy [200^ 
 
 " Reid [262 
 
 Mason, Re [116], [142 
 
 " V. Brentini 42 
 
 " Jeffrey 380 
 
 " Seeney . .321, 337, 345, [219 
 
 Masselin, Re , [140 
 
 Massey, Re [133' 
 
 Mather v. Short 28( 
 
» 
 
 XXXII. 
 
 TABLE OF CASES. 
 
 PAGK. 
 
 Matshew v. Northern Assurance 
 
 Co [138], [140]. [1411 
 
 Matthews, Re [162], [166] 
 
 V. Chiceater 379 
 
 Matthewman's, Mrs. , case 191 
 
 Mathias v. Mathias 129 
 
 Mattoch V. Heath 281 
 
 Mant V.Smith [126. 
 
 Mavety v. Montgomery . . . [219], [237. 
 
 Mavor V. Dry 231 
 
 • Maxwell v. Maxwell 385, [193 
 
 May V. Biggenden [130 
 
 »♦ Prinsep 318, 39l> 
 
 " Selby 187 
 
 May berry v. Brooking [192] 
 
 Mayes v. Mayes 318 
 
 Maynard, Ee [163], [166] 
 
 Mayor of Berwick v. Murray 184 
 
 " Birmingham V. Allen . . '.»"> 
 
 McAIpine v. Carling 46, 2ol 
 
 •' Young..[201], [202], [2331 
 
 [234] 
 
 McAndrew v. Baker 75, 77 
 
 Laflamme ..[239], [262] 
 
 McAvilla V. McAviUa 275 
 
 McCarglar v. McKinnon [194] 
 
 McCay, Re [129] 
 
 McClaren v. Sudworth 349, 35« 
 
 McClay v. Sharp 37 
 
 McClean v. Grant 150 
 
 Maitland [132; 
 
 McClellan v. Jacobs [206^ 
 
 McClennan v. Helps 315, [185. 
 
 McConnell, Re 188, [184; 
 
 McCormack v. Melton 339 
 
 McCoruiick v. McCormick [224] 
 
 Park 350 
 
 McCready v. Higgins 194 
 
 McCulloch V. McCuUoch [104 
 
 McDermid v. McDermid 275, [235 
 
 McDongal, Re [ll^V 
 
 " V. McDougal [107_ 
 
 McDowell V. McDowell 335 
 
 McDonald, Re . . [116] 
 
 " Macdonald & Marsh, 
 
 Re [133 
 
 " V. Burton 133 
 
 " Garrett [116 
 
 «« Gordon [204 
 
 " McGillis [261 
 
 " McMillan 14^ 
 
 •♦ Putnam 281 
 
 " Rodger [1%], [225] 
 
 " Wright [184], [196] 
 
 McEdwards V. McLean 226 
 
 McGachen v. Dew 184 
 
 McGrath, Re.. [114] 
 
 McGill V. Courtice . .[241], [260], [261] 
 
 McGillivray v. Cameron [2151 
 
 Griffin 74 
 
 " M!cConkey, 229, 246, 249, 
 
 251, 252 
 McGinnis v. The Corporation of 
 
 Yorkville 353 
 
 McGiverin v. James 157 
 
 McGrath v. McGrath [104] 
 
 PAGE. 
 
 McGregor v. Keiley [126] 
 
 McHenry v. Davies 191 
 
 Mclh-oy V. Hawke 359, 368, [226] 
 
 Mcintosh V. Great Western Ry. 
 
 Co 97,282 
 
 " Ontario Bank [227 
 
 Mclntyre v. Connell 18< 
 
 Kingley 169, [Ill- 
 McKay V. McKay [103 
 
 Mitchell 349 
 
 Tait 
 
 McKenna v. Everitt 
 McKenzie v. 
 
 349 
 312 
 142 
 
 Harris 
 
 " Montreal and City 
 of Ottawa Junc- 
 tion Ry. Co 61 
 
 •• Sinton 379 
 
 " Stewart 307 
 
 " Vansickles 202, 247 
 
 Wiggins [237] 
 
 McKinnon v. Anderson [232] 
 
 McLaren v. Caldwell 55 
 
 MiUer [218] 
 
 McLay V.Sharp 206,238 
 
 McLean, Re [138' 
 
 V.Grant [234 
 
 McLeod V. Annesly 201, [259 
 
 McLennan v. Heward, [178], [179],[180 
 
 McLean 1229' 
 
 McMannus v. Little [205], [236 
 
 McMaster v. Beattie 32i 
 
 McMichael v. Thomas [209] 
 
 McMillan, Re, Patterson v. 
 
 McMillan [254] 
 
 " V. McDonald 306 
 
 McMorris, Re 
 McMurray v. 
 
 McMillan [179] 
 
 [236] 
 
 Grand Trunk Ry 
 
 Co 262, 265, 273 
 
 Spicer [151] 
 
 McMurrich v. Hogan 148 
 
 McNabb v. Gwynne 248 
 
 McNally v. Stephens 342 
 
 McNaughton v. Webster 349, 353 
 
 McNulty, Re [110] 
 
 McPherson v. McCabe 197 
 
 McQueen v. McQueen 391 
 
 McRoberts v, Durie [203] 
 
 Hamilton 339 
 
 McSherry, Re [108] 
 
 McTaviah v. Sympson 147 
 
 McVeagh, Re [178] 
 
 Mearna v, Grand Trunk Ry Co. . 132 
 
 " Petrolia 66 
 
 Mein, Re [110], [1111 
 
 Meldrun V. TuUoch 349 
 
 Mellin v. Monico 92, 94 
 
 Mellor V. Sidebottom 327 
 
 Melnish v. Milton 364 
 
 Memorandum, Re 378 
 
 Mendes v. Guedalla 202 
 
 Mennard v. Welf ord [1621 
 
 Mentens v. Haigh 283 
 
 Menzies v. Ridley [240] 
 
 Merchants' Bank v. Grant 71 
 
 " Pierson 276 
 
TABLE OF CASES. 
 
 XXXllI. 
 
 PAOB. 
 
 [1261 
 
 191 
 
 59, 368, [226] 
 •n Ry. 
 . . . . .97, 282 
 
 [2271 
 
 184 
 
 ...169, [111 
 
 im 
 
 34' 
 
 349 
 
 312 
 
 142 
 
 d City 
 Junc- 
 
 51 
 379 
 .. 307 
 .202, 247 
 .. [237] 
 .. [232] 
 55 
 .. [2181 
 .206,238 
 [138 
 
 .,..201, 
 5], [179], 
 
 234 
 
 259' 
 
 m 
 
 !229 
 236 
 .:.. : 327 
 
 [209 
 
 on 
 
 [254] 
 
 306 
 
 [179] 
 
 [236] 
 
 nk Ry 
 
 262, 265, 273 
 
 148 
 
 248 
 
 342 
 
 349,353 
 
 197 
 
 391 
 
 .. [203] 
 
 339 
 
 .. [108] 
 
 147 
 
 [178] 
 
 132 
 
 66 
 
 yCo.. 
 
 .■[iio], 
 
 n. 
 
 341 
 92,94 
 327 
 364 
 378 
 202 
 
 ^T 
 
 [2401 
 276 
 
 PAGE. 
 
 Merchants' Bank v. Sparks. [221], [222] 
 
 llsdale 280 
 
 Merriam v. Cronk [226] 
 
 Merrick v. Sherwood 191, 196 
 
 Merrill v. McFarren 347 
 
 Mertens V. Haigh 280 
 
 Merry's Estate, Re [119 
 
 Metcalfe, Re [141 
 
 " V.Davis 128,139 
 
 Metropolitan Board of Works v. 
 
 The New River Co 296 
 
 Metropolitan Building and Sav- 
 ings Society v. Rodden 327 
 
 Metropolitan Railway v. Defries. 221 
 
 Meyers v. Harrison [206] 
 
 Lake 143 
 
 Meyrick, Re [155] 
 
 " V. James 320 
 
 Mitchell, Re [178] 
 
 Michie v. Reynolds 132, 339 
 
 Micklewait v. Micklewait 48 
 
 Middleton v. Dodswell 56 
 
 " Greenwood [102] 
 
 Mildmay v. Methune 97 
 
 Miles, Re [177 
 
 Milfield. Re [148 
 
 Milissich v. Lloyd's 32i 
 
 Millar v. McNaughton 1 240 
 
 Miller, Re 110' 
 
 " V. Attorney -Genertj '100' 
 
 Hill 14i 
 
 " Macnaughten [182 
 
 Mills V. Choate [232' 
 
 " Dixon [214' 
 
 " Jennings 185,18V 
 
 Milne, Re [109] 
 
 " V. Lamson 298 
 
 Minchin, Re [168] 
 
 Minet v. Morgan 281 
 
 Mitchell v. Cobb [1391 
 
 Goodhall 51 
 
 " Mitchell. [184], [203], [235] 
 
 „ , ," „ Wilson 305 
 
 Mobbs, Re [127] 
 
 Mockett, Re [178] 
 
 MoflFatt V. Hyde * ' " 334 
 
 " Prentice 274 
 
 „ " .p White [219] 
 
 Money, Re [1491 
 
 Moneypenny v. Dering 251 
 
 Moodie V, Bannister I86 
 
 " Thomas .'. 132 
 
 Moody V. Tyrell r23n 
 
 Moore v. Boyd .273 277 
 
 ' ' Connecticut Mutual Life ' 
 
 Insurance Co 69 
 
 ;; Merritt. [218J 
 
 Roseburgh 145 
 
 Moran v. ochemerhorn 143 
 
 Moravian Society, Re [162] 
 
 Morell v. Morrison ...... 274 
 
 PAOB. 
 
 Morley v. Morley 187 
 
 Momington v. Mornington "'"' 
 
 282 
 
 [126] 
 
 [r 
 
 Morgan v. Higgins 
 
 " Scudamore tiSsI 
 
 ;; Swansea. [150], [151], [153] 
 
 Ti# , Worthmgton 257 
 
 Morley v. Mathews [1%] 
 
 Morphy & Kerr, Re [1261 
 
 Morris v. Boulton 339 
 
 " Manesty 141 
 
 Morrison v. Morrison 346 
 
 Morrow v. Wilson 381 
 
 Morshead v. Reynolds [187] 
 
 Mortimer v. West 188 
 
 Morton v. Miller 223, 366 
 
 Moseley, Re [1381 
 
 " v. RendaU 216 
 
 Moss, Re [128] 
 
 Mostyn v. The West Mostyn 
 
 Coal and Iron Co. , (limited) . 32, 37, 219 
 
 Mounsey v. Bumham. 253 
 
 Mount, Ex parte [112 
 
 Mountain v. Porter [214 
 
 Young [138, 
 
 Mozley v. Cowie 24' 
 
 Mu^geridge, Re [178] 
 
 Muirhead v. The Direct United 
 
 States Cable Co. (Limited). ... 176 
 Mullarky, Re, McAndrew v. 
 
 Laflamme 79 
 
 MuUin v. Bonjor 139 
 
 MuUins V. Howell 71 
 
 Mundell, Re [153], [163 
 
 Murney v. Knapp 14 
 
 Murphy v. Lampier [116] 
 
 Murphy [260J, [262 ] 
 
 Murray v. Barlee [127] 
 
 •• Frank 217, [108] 
 
 •• French 25 
 
 Munch v. Cockerell 201 
 
 Munro v. Munro 62, [103] 
 
 Murrow v. Wilson [127] 
 
 Mutlow V. Mutlow [141] 
 
 Myers v. Defries 377 
 
 " Myers 335, [236] 
 
 Nalder V. Hawkins 189 
 
 Nanny v . Edwards [214] 
 
 Nash V. Glover 79 
 
 Nathan v. Batchelor 257 
 
 Naylor, Re [140] 
 
 V. Farrer 35,41, 43 
 
 Neads v. McMillan 73 
 
 Neate, Re [134] 
 
 Neave v. Averey 33 
 
 Needham v. Oxley [101] 
 
 Nelles V. Vandyke 331, 1256] 
 
 Nelson, Ex parte , 342 
 
 " V. Nelson 335 
 
 " Roy 128 
 
 Nevieux v. Labadie [219], [237] 
 
 New Westminster Brewery Co. v. 
 
 Hannah 202, 310, 318 
 
 Newbiggin-by-the-Sea v. Ann- 
 strong 27, 136, 142 
 
 Newby v. Harrison [102] 
 
 VanOppen 154, 156 
 
 Newcomen v. Coulson 240 
 
 Newell V. The National Provin- 
 cial Bank 37, 38 
 
 Newen V. Wetten [184] 
 
XXXIV. 
 
 TABLE OF CASES. 
 
 PA OK. 
 
 Newington v. Levy . 23;< 
 
 Newman, Ke..[l]0], [HI], [128], [135] 
 
 " V. Rook 352, 353 
 
 " Warner [mi] 
 
 Newton, Re 318, 3!m 
 
 " V. Boodle 3t)l 
 
 Ricketts [127] 
 
 Nioholl V.Allen 54 
 
 " Jones 280 
 
 Nicholls, Re [1581 
 
 V. McDonald [194], [195] 
 
 Nicholson, Re [129] 
 
 " V. Jackson 43, 44 
 
 Peile 359 
 
 Nimmo v. Welland 347 
 
 Noad V. Murrow 202, 247 
 
 Noble V. Stow 357 
 
 Noel V. Ward [191 
 
 Nokes V. Wharton [l34 
 
 Nolan V. Nolan [104 
 
 Nonell V. Hullett 34i 
 
 Norris v. Beazley • 202 
 
 Bell [240] 
 
 The Irish Land Co ... . 55 
 
 North V. Huber 282 
 
 '* Central Waggon Co. v. 
 
 North Wales Waggon Co 175 
 " of Scotland Mortgage Co. 
 
 V. German 49 
 
 " Wheal Exmouth Mining 
 
 Co., Re 274 
 
 Northern Railway Co. v. Lister . 133 
 Norton V. Florence Laud and 
 
 Public Works Co 158 
 
 Norway v. Norway [171] 
 
 Nott V. Riccard 51 
 
 Nowell V. Andover Railway Co. . 262 
 
 Noyes v. Crawley 258 
 
 Nudel V. Elliott [238], [261] 
 
 Nurse v. Dunford 142 
 
 Ord V. Fawcett 
 Orford V. Bailey 
 
 PAGE. 
 
 282 
 
 Oakely v. Toronto, Grey and 
 
 Bruce Railway Co 
 
 O'Brien v, Lewis 
 
 O'Connor v. McNamee 
 
 " Sierra Nevada Co. . . 
 
 " Woodward ...[202], 
 
 Odellv. Doty [216], 
 
 O'Donnell, Re 
 
 O'Donohoe & Warmoll, Re. [127], 
 
 V.Wiley 
 
 Ogden V. Battams 
 
 McArthur 
 
 Oglander v. Oglander 
 
 Ogle, Ex parte 
 
 O'Grady v. Munro 
 
 O'Keefe v. O'Brien 
 
 Oldale V. Whitcher 
 
 Olive, Re 
 
 Oliver v. Dickey 
 
 O'Lone v. O'Lone 
 
 Ommaney, Ex parte 
 
 O'Neil V. Clason 
 
 Ontario Bank v. Sim 
 
 " Sirr 
 
 278 
 [126] 
 51 
 379 
 [233], 
 '234 
 235 
 174 
 128 
 157 
 [188] 
 194 
 164 
 72 
 379 
 306 
 379 
 [119] 
 312 
 [107 
 [170 
 153 
 [204 
 [236 
 
 [211] 
 
 Orger V. Sparke [160] 
 
 Oriental Hank v. Fitzgerald 176 
 
 " Navigiiti'n Co. v. Briggs 262 
 Original Hartlepool Collieries Co. 
 
 V. Gibb 39,231 
 
 Osborne, He [148], [151], [1621 
 
 V. JuUion 202 
 
 Ottey V. Pena.'im [194 
 
 Outram v. Wyckhoff [238 
 
 Owen V. Houian 57, [198 
 
 Owens v. Dickenson.. [186], [190], [191 
 Oxenden v. Compton [Ill 
 
 Packington's case 48 
 
 Paddon v. Winch 74 
 
 Padwick v. Scott 35, 36, 218 
 
 Paine v. Chainnan 258 
 
 Painter, E.\ parte [1701 
 
 Palairet v. Carew [171] 
 
 Palmer v. Wale.sby 142, 217 
 
 Winstanley [-iSl] 
 
 Papayanni v. Coultpas 176 
 
 Paraire v. Loible 270 
 
 Parby, Re [161 
 
 Parby's Settlement, Re 119 
 
 Parke, Re ^164; 
 
 Parker, Re [I6(i'_ 
 
 " Cash v. Parker ..... 35{ 
 
 " v. Brown 165 
 
 " Vinegrowers [222] 
 
 Parkinson v. Hanbury 391, [226] 
 
 Parnell v. Kingston [163] 
 
 Parjiaite Freres v. Dickinson .... 131 
 
 Parry, Re 
 
 " v. Howell 
 
 Parsons v. Harris 223, '62 
 
 Tinling 377 
 
 Passmore, Re [127] 
 
 V. Nicholls 148 
 
 Patch v. Ward 283, [232] 
 
 Patterson v. Kingsley 5! . 
 
 Miller, Re [124 
 
 " Robb [204], [236; 
 
 Pattinson, He [149 
 
 Pattison, Re ..,■ [241' 
 
 V. McNabb 30G 
 
 " Viooler 310,318 
 
 Patton, Re fill] 
 
 Paul V. Johnson [227] 
 
 Paxton V. Jones 27? 
 
 Payne v. Little 188 
 
 Parker 186 
 
 Peach. Re [130] 
 
 Peacock v. Harper 319 
 
 Pearce v. Watts 258 
 
 Peareth v. Marriott [119] 
 
 Pearson, Re [141] 
 
 " V. Campbell 148 
 
 " Lane ... 208 
 
 " Ward 312 
 
 " Wilcox 396 
 
 Pease v. Fletcher 57 
 
 Peek V. Spencer 248 
 
 * ' Trinsmaran Iron Co ... . 57 
 
 . [119 
 . [240 
 
TABLE OF CASES. 
 
 XXXV. 
 
 PAGE. 
 
 282 
 
 [ico] 
 
 176 
 262 
 
 d. 
 
 Brings 
 ies Co. 
 39.231 
 
 194 
 238' 
 198' 
 191 
 HI 
 
 ....57, 
 , [190], 
 
 48 
 
 74 
 
 .35, 36,218 
 258 
 
 :::;: m 
 
 ....142,217 
 
 ta 
 
 17tt 
 
 270 
 [161 
 119 
 '164 
 16ft 
 33« 
 165 
 '2221 
 226' 
 ^163' 
 " 13 
 ... [119 
 ,.. [240' 
 . 223,328 
 377 
 .... [127] 
 .... 148 
 .283, [232] 
 51 
 124] 
 "236] 
 149] 
 [241] 
 306 
 310. 318 
 
 .391, 
 
 ison 
 
 ...[204], 
 
 .. [227] 
 
 Co.. 
 
 277 
 188 
 186 
 [130] 
 319 
 258 
 [119] 
 [1411 
 148 
 208 
 312 
 396 
 57 
 248 
 57 
 
 PA OR. 
 
 Peers, Re [1^0] 
 
 Peile, Re [1301 
 
 •• V. Stoddart 281 
 
 Peketham v. White 283 
 
 Pellas V. Neptune Marine Ins. Co. 37 
 
 Pender, Re [120], [132] 
 
 Pendry v. O'Neil 381 
 
 Penn v. Lookwood 168 
 
 Penner v. Canniflf [211], [225] 
 
 Penney v. Goode . 282 
 
 Pennington v. Lord Muncaster. . [194 
 
 Penny v. Francis [239_ 
 
 People V. City of Chicago 5' 
 
 " Darling 54 
 
 " Mayor of New York . . 54 
 
 " State Treasurer 54 
 
 People's Garden Company, Re . . 45 
 
 " Loan Co. v. Bacon [230] 
 
 Pepper v. Pepi)er 330 
 
 Peppit's Estate, Re, Chester v. 
 
 Phillip.s 199 
 
 Perkins, Re [127] 
 
 [241] 
 187 
 
 [239] 
 291 
 
 Perot V. Novelli 
 
 Perrin v. Perrin [102] 
 
 Perry v. Knott 
 
 Petee Re, McKinley v, Beadle. . 
 
 Pfiters V. Peters 
 
 Peterson v. Petersom [104' 
 
 Petit V. Ambrose 14i 
 
 Pett's Will, Re [177" 
 
 Peyton, Re [156], [178' 
 
 Phelan, Re ... [116 
 
 Pherill v. Pherill 33i 
 
 Pheysey v. Pheysey 75 
 
 Phiiby V. Hazle [128] 
 
 Phillips, Re [170] 
 
 " andGill.Re 366 
 
 " V. Harris 291 
 
 " Holmes 283 
 
 " Phillips 221, 250 
 
 " Prentice 318, 396 
 
 " Winters 167 
 
 Phillipson v. Gatty 187 
 
 Phippen v. Brown 357 
 
 Phipps V. Danbury [126] 
 
 Phosphate Sewage Co. v. Molleson 46 
 
 Pickance, Re [166] 
 
 Pickard v, Hine 190, 196 
 
 Pickford v. Brown 367 
 
 Piercy v. Young 44, 300 
 
 Pierson v. Barclay 184 
 
 Pigeon V. Bruce 148 
 
 Piggott V. Piggott 187 
 
 Pike V. Fitzgibbon 195 
 
 Keene 144, 288 
 
 Pilcher, Re, Pilcher v. Hind . .214, 395 
 
 Pilling, Re 72 
 
 Pince V. Beattie [128 
 
 Pipe V. Shafer '215 
 
 Pitt, Re [161 
 
 Pledge V. Buss 25i 
 
 Plinty V. West [163] 
 
 Plumer v. Gregory 184 
 
 Plyer, Re []52J 
 
 Pommerania, Re 241 
 
 Pongerard, Re [174J 
 
 PAGE. 
 
 Pontifex v. Severn 92 
 
 Popi)lewell & Capreol v. Abbott. 164 
 
 Pooley V. Driver 296 
 
 Porter, Re [149], [162], [163;| 
 
 Portinan v. Patterson 73 
 
 Paul 
 
 «' Smith 
 
 Post v. Leys .• 
 
 Postmaster-General v. Robertson 51 
 
 Potter v. Chu nbera 41, 42, 219 
 
 Rankin 391 
 
 Potts, Re [119] 
 
 " v.Leighton [199] 
 
 Poulton V. Lee 145 
 
 Powell V. Jewesbury 2.53, 257, 259 
 
 Lea 277,289,327,328 
 
 " Mathews 
 
 " Oakley 
 
 " Walwor'-h 
 
 Powers V. Merriman [215], 
 
 Prees v. Coke 
 
 Prentiss v. Brennan 56, 335, 
 
 150 
 119 
 182' 
 230 
 230' 
 345 
 
 Prescott, Re [166] 
 
 Preatwich v. Poley 71 
 
 Price, Re [lo21 
 
 " v. Bailey 313 
 
 " Berrington 217 
 
 •' Gardner 402 
 
 " Webb 136 
 
 Prideaux, Ex parte [126' 
 
 Primrose, Re [171 
 
 Pritchard v. Fleetwood 5( 
 
 Prince, Re [128' 
 
 " v. Hine 162 
 
 Lough 2.58 
 
 Pringlev. Gloag 384, 389 
 
 Proctor V. Grant 277, 2^9 
 
 Propert, Re [148] 
 
 Prosser v. Mossop [259] 
 
 Protector Endowment Company 
 
 V. Whitlam 347 
 
 Prothero v. Thomas [130] 
 
 Proudf oot V. Bush 168 
 
 Provident Permanent Building 
 
 Society v. Greenhill 268 
 
 Provident Permanent Building 
 
 Society v. Pryse [166] 
 
 Pugh, Re [127], [129], [134] 
 
 Pumell V, Great Western Ry. Co.29, 323 
 Puttrell, Re [140] 
 
 Quantz v. Smelser . 
 Queen Insurance Co. v. 
 
 143 
 
 327 
 
 138 
 
 254] 
 
 141] 
 
 155] 
 
 Boyd .... 
 
 Scott .... 
 
 Smith 140, 
 
 Queen's College, Ex parte 
 
 Quinlan, Re 
 
 Quinn v. Hession 35, 36, 44 
 
 " RatclifiFe 280,281 
 
 Radclyffe v. DufiFy [215] 
 
 Radenhurst v. Reynolds 334 
 
 Rae V. Geddes [2'?6] 
 
 " Shaw [215], [2301 
 
 Rafael V. Ougley 149 
 
 Rainy V. Bravo 247 
 
XXXVl. 
 
 TABLE OF CASES. 
 
 Ramsay v. McDonald. 
 Ranee, Re 
 
 PAOB 
 
 233 
 134' 
 
 Randall, Re [IS?! 
 
 Ranger v. Great Western Ry. Co. 280 
 
 Rann v. Lawless 188, 197 
 
 Ranaome, Re i^^^} 
 
 Raphael, Re [I62l 
 
 Rathbone, Re [158], [1621 
 
 Ratray v. George 261 
 
 " Bishop 365 
 
 Rawley v. Rawley 37 
 
 Rawlings v. Lamburt 262 
 
 Rawlinson v. Moss [132] 
 
 Ray V. Barker 175, 176 
 
 Read v. Prest 186 
 
 Real and Personal Advance Co. 
 
 V. McCarthy 58, 242 
 
 Reaume v. Leavitt and Reaume 
 
 V. Trowbridge 379 
 
 Redman v. Brownscombe, 135, 190, [121] 
 
 Reed V. Barton 
 
 Rees V. Watts 
 
 Regina v. Allen 
 
 *' Benson 
 
 Clarke 
 
 Garland .... 
 
 George Archib'ld Amer 
 and Laban Amer . . . 
 
 Howes 
 
 Mason [109] 
 
 148 
 37 
 62 
 
 346 
 60 
 64 
 
 65 
 60 
 
 Rep^nault, Re 
 Reid V. Langlois. 
 
 Smith . 
 The Parish of St. 
 Nicholas — without. . 
 
 59 
 
 54 
 
 163 
 
 282 
 
 MidHleton .............. [198] 
 
 Remnant, Re [130] 
 
 " V. Hood 162 
 
 Renshaw, Re [162] 
 
 Republic of Bolivia v. Bolivian 
 
 Co 245,296,325 
 
 " Costa Rica v. Er- 
 
 langer 278, 382 
 
 ' • Costa Rica v. Strous- 
 
 berg 279, 347 
 
 *' Liberia v. Imperial 
 
 Bank 280 
 
 " Liberia v. Roye ..." 288 
 
 Roto v. Welland Railway 66 
 
 Rex V. Barker 63, 64 
 
 " Bishop of Chester 64 
 
 " Bristol Dock Co 54 
 
 " Dalaval 59 
 
 " Greenhill 60 
 
 •' Isly 60 
 
 " Roberts [109 
 
 •' Southerton [124 
 
 " St. Catharine's Dock Co.. 
 " The Severn and Wye Ry. 
 
 Co 64 
 
 " Windham 54 
 
 Reynolds v. Caswell [126 
 
 " Coppin [239' 
 
 " Godlee 281,283 
 
 ^ « Howell 142 
 
 Rhodes v. Jenkins 78 
 
 zoo 
 
 PAOB. 
 
 Rhodes v. Nelld 288 
 
 Rice V. r orge 
 
 Richards, Re [138], [166], 
 
 " V. Goddard 
 
 Kitchin 346 
 
 " Parkins 66 
 
 Richardson, Re [128], [130] 
 
 v.Elmit 350 
 
 Greaves 352 
 
 " Grubb [171] 
 
 Miller 188 
 
 Riddell V. Ritchie 3.i6 
 
 Ridgeway v, Darwin [HI J 
 
 Ridler v. Ridler 217 
 
 Rigg V. Wall 304 
 
 Rigney v. Fuller [2071 
 
 Rio Grande du Sud Steamship . . 72 
 
 Risca Coal Co., He 331 
 
 Rives V. Rives [174] 
 
 Robe V. Reid 143 
 
 Roberts Re [113] 
 
 •' V. Ball 383, [1.38], [141] 
 
 Berry 
 Evans 
 
 .'■>1 
 202 
 
 •• Lucas [1267 
 
 " Spicer 189 
 
 " The Corporation of 
 
 the City of London. 35 
 
 Robertson, Re... 387, 391, [141], [172] 
 
 " V. Cooley 228 
 
 Grant [141] 
 
 " Howard ... 130, 235,257 
 
 " Robertson. 79 
 
 " Southgate [123] 
 
 Robinson, Re 330 
 
 " V. Chadwick 241,304 
 
 " Pickering 195 
 
 " Richardson 307 
 
 " Robinson 308, 366 
 
 '• Thompson 260 
 
 " Whitcomb [225] 
 
 Robson V. Flight 281 
 
 " Whittingham [101] 
 
 Roche V. Jordan 258 
 
 Rodgers v. Manley 319 
 
 " Manning 313 
 
 " Rodgers 186, 307, [187] 
 
 Rodman v. 
 Rodway v. 
 
 Tl9l'],' 'l203ir(2'sll [240J! 
 
 Rodman [10.1] 
 
 Lucas 132 
 
 Roe V. Davis 246, 247, 248 
 
 Rogers v. Hunt 133 
 
 Rolfe V. McClaren 41, 240 
 
 Romanes v. Fraser 79 
 
 " Hern [227] 
 
 Rooney v. Rooney 322 
 
 Rose V. Hiokey 77, 79 
 
 Rosebatch v. Barry [264] 
 
 Ross, Re 62 
 
 V. Gibbs 281 
 
 Grant 28, 62 
 
 Hayes 146 
 
 McLay 385 
 
 Perrault [196], 
 
 Ross . > 
 
 Steele [122], 
 
 264 
 165 
 236' 
 
TABLE OF CASES. 
 
 XXXVll. 
 
 .246. 247, 248 
 
 PAOE. 
 
 Kotheram ". Priest H^ 
 
 Rowbv V. Rowby l}^YJ^ 
 
 Rowcfitfe V. Leigh 
 
 Rowe V. Wert 
 
 Rowley, Re 
 
 " V. Adams 
 
 Rowaell V. Moriia. ...[2:18] [200], 
 Royal Canadian Banlt v. Dennis 
 
 [20;(], 
 ■ jil 
 
 95, 96 
 79 
 
 170 
 174^ 
 
 m 
 
 [234] 
 
 Mitchell 
 189, 190, 192, 191 
 
 Royle, Re, Fryer v. Royle . . . . .130, 198 
 
 Rowe [' 
 
 Ruili^e V. Weedon [141] 
 
 Rudd V. Rowe 
 
 [21 »] 
 
 Rumbold V. Furteath 280, 281, 288 
 
 Rump V. Greenhill 258, [238] 
 
 Rumaey v. King 70, 71 
 
 Read . 328 
 
 Runnacles v. Mosquita 175 
 
 Russell, Re :. .[1481, [157], 
 
 " V. East Anglian Ry. Co. 
 
 161 
 198" 
 227 
 
 Robertson 
 '• The Great Anglican 
 
 Railway Company . 56 
 
 Rustou V. Tobin 300 
 
 Ruttan V. Austin [134] 
 
 Smith 251 
 
 Rutter V. Chapman 290 
 
 Ryall V. Regina [126] 
 
 Ryan, Re [156] 
 
 Rycroftv. Christy 189 
 
 S. , Re, an attorney [125 
 
 Sadlier v. Smith. . . .250, 251, 274, [190 
 Saffrey, Ex parte, Lambert, in Re 39; 
 
 St. Aubyn v. Smart 184 
 
 " John V. Rykert. ...50, 86, 340, [226] 
 " Michael's Coll. v. Merrick. . . 33, 34 
 
 Sale V, Kitson 187 
 
 '• Sale 188 
 
 Salt V. Cooper Sj5 
 
 Sander v. Heathfield [186; 
 
 Sanders v, Christie 5t 
 
 Horner [174; 
 
 Sanderson v. Burdett [216^ 
 
 Sandys v. Long 375 
 
 Saner v. Bilton 42 
 
 Sargant v. Read' 56, 364 
 
 Sargent v. Gannon [126] 
 
 Saull V. Browne 288 
 
 Saumarez, Re ^^^^1 
 
 Saunders v. Jones 276 
 
 StuU 259 
 
 Savage v. Snell 297 
 
 Sayer v. Wagstaff [134] 
 
 Sceptre and Lie ,nsed Victuallers' 
 Fire Insurance Co., In Re ... . 78 
 
 Schackell, Ex parte [134] 
 
 Schneider v. Lizardi 262 
 
 Schofield, Re [171] 
 
 Schomberg v. Zoebelli 235 
 
 Schroder v. Schroder 295, [119] 
 
 Scripture v. Gordon 144, 338 
 
 Scott, Re 62 
 
 " V. Black [2371 
 
 " Mayor of Liverpool. ... 318 
 
 PAoa. 
 
 Scott V. McDonnell [2161 
 
 " McKeown [2131 
 
 ' « Royal Wax Candle Co . 186, 157 
 
 Scully V. Lord Dundonald. ..... 46 
 
 Seath V. Mcllroy 74 
 
 Seear v. Lawson 389 
 
 Seidler v. Sheppard. . . .184, [207], [2211 
 
 Senior v. Pawson [101] 
 
 Senn v. Hewitt 274 
 
 Sergison v. Beavan 148 
 
 Sessions v. Strachan 380 
 
 Severn v. Severn [103], [1041 
 
 Sexton Barn's Settled Estate, Re [1191 
 
 Seymour v. Longworth 283 
 
 " The Corporation of 
 
 Brecon 382 
 
 Shardlow v. Cotterill 226 
 
 Sharp V. Lethbridge 361 
 
 Sharp 217 
 
 Sharpe, Ra [1411 
 
 " V.Lamb 291 
 
 Sharpley, Re [166] 
 
 Shaw, lie [112], [114], [130l 
 
 " v.Acker 161 
 
 " Crawford [2341 
 
 Earl of Jersey 56, 58, 363 
 
 " Hardingham 187 
 
 Liddell 187 
 
 " Ormiston 143 
 
 Sheehan v. Great Eastern Rail- 
 way Company 202, 204, 205, 259 
 
 Sheffield Water Works Act 391 
 
 Shelford v. The South and East 
 
 Coast Ry. Co 131, 176 
 
 Shelly V. Westbrooke 60 
 
 Shelley v. Young 194 
 
 Shelmerdine, Re 
 
 Shephard v. Beane 206, 
 
 Shepherd v. ChurchiU [156], 
 
 Sheppard, Re 
 
 Sherrard, Re 
 
 Sherwood v. Campbell [200], 
 
 " Sanderson... 25, 217, 
 
 162 
 218" 
 160' 
 165^ 
 160' 
 ,235"^ 
 '108' 
 109' 
 186' 
 6i 
 
 [262] 
 
 351 
 
 14,187 
 
 262 
 
 Shewan v. Vanderhorst 
 
 Shillitov. CoUett 
 
 Shipman, Re, Wallace v. Ship- 
 man [241], [261], 
 
 Shippey v. Gray 
 
 Shipton V. Rawlins 184, 187 
 
 Shirley v. Earl Ferrers 
 
 Sibson V. Edgworth 
 
 Sidden v. Liddiard [185] 
 
 Silver v. Bishop of Norwich 
 
 Simes v. Eyre 
 
 Simmers v. Erb 331, 
 
 Simmons v. Lord Kinnaird 
 
 Simon, Re 
 
 " V. Le Banque Nationale . 
 
 Simonton v. Graham [2261 
 
 Simpson, Re 251 
 
 " v. Denny 187 
 
 Grant 268 
 
 " The Ottawa & Pres- 
 
 cott Railway Co. 56, [1981 
 [199] 
 
xxxvm. 
 
 TABLE OF CASES. 
 
 Sims v.'Ridge [182] 
 
 Sinclair v. Chisholm I'Si 
 
 Singleton v. Hopkins [150 
 
 Sivewright v. Sivewright 273, [190 
 
 Skelly V Skelly [216 
 
 Skiffen v. Davis 187 
 
 Skinner, Ex parte 59 
 
 " V. Palmer 258 
 
 Skip V. Harwood [198 
 
 Skitter, Re [151], [153], [155 
 
 Sladden, Re [134], [135 
 
 Slater v. Fisken [122], [236 
 
 " Slater [239], [259 
 
 " Stoddart 135 
 
 Sleight V. Lawson [188] 
 
 Sloman v. Governor and Govern- 
 ment of New Zealand 149 
 
 Sloper, Re [166] 
 
 Small V, Union Permanent Build- 
 ing Society 46, 230 
 
 Smallwood v. Rutter 188 
 
 Smart v. Miller 349 
 
 " The Niagara & Detroit 
 
 Rivers Railway Co. . 133 
 
 Smeeton v. Collier 141 
 
 Smirthwaite, Re [16i] 
 
 Smith, Re 62, 72, 207, [117], [126], 
 
 [132], [141], [142], [16;i] 
 
 V. Andrews 187 
 
 " Barnes 283 
 
 ; " Bird 290 
 
 " Boucher [151], [161] 
 
 BuUer 391 
 
 " Cornfoot 379 
 
 Cowell 75 
 
 " Day 62,381,391 
 
 " Dickinson 339 
 
 Doyle 197 
 
 " Elliott [221] 
 
 " Gimn 359 
 
 •• Haseltine 201 
 
 Hill 151 
 
 " Horsfall 357 
 
 '• Lett 172 
 
 " Muirhead 165 
 
 " Parkside Mining Co.... 97 
 
 " Port Hope Harbour 
 
 Commissioners 241 
 
 •* Richardson 213 
 
 " Smith . .57, 251, [104], [152], 
 
 [164] 
 " Trust and Loan Com. 
 
 of Upper Canada 350 
 
 " Turnbull 143 
 
 " 'vVebster [184] 
 
 " Whichcord 361 
 
 •' Wilson 131,174 
 
 Smyth, Re [141], [165], [166] 
 
 Snow V, Cole 128 
 
 Society of Apothecaries v. Not- 
 tingham 283 
 
 Solicitor, 346, 366 
 
 Solomon v. S Iman 318, 396 
 
 Somerville v. Kerr 145, 379 
 
 Poules v. Soules [l*'*] 
 
 South Wales Company, Re [170] 
 
 PAGE, 
 
 238 
 
 218' 
 162' 
 
 mj 
 
 Sovereign v. Sovereign 
 
 Sparks v. Redhead . 
 
 Sparrow, Re 
 
 Speers v. Great Western Railway 
 
 Company 
 
 Spence v. Hector 132 
 
 Spencer McDonald, Re [13^; 
 
 " V. Barough 29( 
 
 Spier V. Bernard [126 
 
 Spiller, Re [178; 
 
 " V. Paris Skating Rink Co. 
 
 (Limited) 313 
 
 Springer v. Clark [241], [261] 
 
 Sprunt v. Pugh 342 
 
 Sprye v. Reynell 244 
 
 Spurrv. Hall 233, 270 
 
 Stahlschmidt v. Lett [186] 
 
 Stain V. Banks [226j 
 
 Stainton v. Carron Co [188] 
 
 Standard Bank v. ]3oulton 194 
 
 " McGuaig .... 276 
 
 " Discount Co. v. La 
 
 Grange 75, 176 
 
 Standing v. Torrance 132 
 
 Htantord v. Hurlestone 55 
 
 Stansfield v. Hobson 187 
 
 Stanton & Warren v. McClean . . [126] 
 
 Staples v. Young 41, 219 
 
 Star V. Newbury [119] 
 
 Starrat v. Manning. 
 
 Stracey v. Blake 
 
 Stratford and Huron Railway 
 
 Co. and the Corporation of the 
 
 County of Perth 
 
 146 
 291 
 
 52 
 
 Steele, Re [126], [134] 
 
 V. 
 
 56 
 281 
 224 
 134 
 106 
 124' 
 235' 
 182' 
 138 
 
 Grossniith 
 
 " Stewart 
 
 Sterling v. CampbeU [212], 
 
 Stephen, Re 
 
 " V. Hunter 
 
 Stephens v. Hill 
 
 Stephenson v. Bane 
 
 NichoU 
 
 Williams 128, .„^ 
 
 Stewart, Re 251, [159], [175] 
 
 " V. Fletcher [185], [241], 
 
 [258 
 
 " Gladstone 31l 
 
 ♦• Hunter 186, 187, [193 
 
 " Stewart 379, [204' 
 
 Stimpson v. Stimpson Hi 
 
 Stinson V. Taylor 244 
 
 Stirling v. Dubarry 376 
 
 Stock, Ex parte [140] 
 
 Stockton Iron Furnace, In Re. . . 75 
 
 Stokes, Re [163] 
 
 " V. Trumper [127], [1301 
 
 Stone v. Wishart [197] 
 
 Stovel V. Coles 197 
 
 Strachan v. Devlin [218] 
 
 Murney [218], [222] 
 
 Strauss v. Francis 70, 71 
 
 Street v. Gover 39, 24& 
 
 " Hallett [20.51 
 
 " O'Reilly [232] 
 
 " The Commercial Bank. 49 
 

 TABLE OF CASES. 
 
 XXXI X. 
 
 PAGE. 
 
 Strelley v, Pearson '■^^'■i 
 
 Strickland v. Strickland 253 
 
 Strong V. Moore ^192 
 
 Strong [141] 
 
 Strother, Re [129], [134] 
 
 Stroud V. Gerrard 162 
 
 Stuart, Re [HI], [170] 
 
 Stubbs V. Boyle 98 
 
 Molineux [185] 
 
 Stupart V. Arrowsmith 202 
 
 Sturgis V. Corp 195 
 
 Sullivan v. Beavan [240; 
 
 " Bridges [120 
 
 Sullivan .... [241], [2«i; 
 
 Summerfield v. Pritchard 284 
 
 Superior Savings and Loan Soc'y 
 
 V.Lucas 50 
 
 Sutherland v. Dickson [209] 
 
 Rogers [18.5], [190] 
 
 Swaine v. Great Northern Ry. 
 
 Co [201] 
 
 Swallow V. Binns 295 
 
 Swan V. Adams 380 
 
 ' ' Marmora [231] 
 
 Swansea Shipping Co. v. Duncan 15li, 
 
 207, 209 
 " ValeRy. Co. v. Budd.. 284 
 
 Swanzy V. Swanzy 379,381 
 
 Sweetnam v. Sweetnam. [187] 
 
 " Lemon 351 
 
 Swetnam v. Swetnam.[241],[260], [261 
 
 Swift v. Minter [224 
 
 Swinbank, Ex parte [231 
 
 Swinfen v. Swinfen 70, 7 1 
 
 Sworder v. Dear 38 
 
 Syers v. Pickersgill 3til 
 
 Sykes v. Brook 95 
 
 HastinL's [197] 
 
 " The Brockville& Ottawa 
 
 Railway Co 353 
 
 Talbot V. Marshfield 281, 284 
 
 Tapp V. Jones 350 
 
 Tarbutt, Re [119] 
 
 Tardrew v. Tlowell [240] 
 
 Tarycross v. Dreyfus 158 
 
 Tate v. The Corporation of the 
 
 Ci of Toronto 351 
 
 " Hitch.ns [120] 
 
 Tawell v. Slate Co 214 
 
 Taylor, Re [133], [1«4 
 
 " V. A. &B [124 
 
 " Batten 282 
 
 " Cuthbert [215], [230] 
 
 " Dowlen 71 
 
 " Eckersly .57,363 
 
 Grand trunk Railway 154 
 
 " Hodgson [126] 
 
 " Jones 368,393 
 
 " Meads 190 
 
 Rundell.. 282 
 
 Teague, Re 
 Teasdale v. Sanderson 
 
 Stead 
 
 Taylor 
 
 Walker ...... [200], 
 
 212' 
 104' 
 208' 
 1321 
 107 
 
 FAoa, 
 
 Teed v. Beere [187] 
 
 Telford v. Ruskin 282 
 
 Tempest, Re [163] 
 
 Tennant v. Ellis 377 
 
 Thibodo v. Collar [218 
 
 Thistlewaite v. Gamier 295, [119. 
 
 Thomas, Re [140], [166], [170. 
 
 •' V. Cotton 339 
 
 «' Cross [126] 
 
 " Harris 71 
 
 McCrae [203], [234] 
 
 " Pearce 148 
 
 " Rawlings 281 
 
 Ruxton [237 
 
 Torrance 186, [199 
 
 Walker [170; 
 
 Williams 56 
 
 Thompson's Settled Estates, Re 
 
 [118], [128], [134], [135] 
 
 Thompson v. Callaghan 381 
 
 Dodd 186,331 
 
 " Dimn 288 
 
 Freeman [178] 
 
 " Lewis 306 
 
 " Macauley [2071 
 
 " Marshall 176 
 
 McCarthy [229] 
 
 Tomkins [139] 
 
 Walker [264] 
 
 " Woodvine 41 
 
 Thorns & Moore, Re [124] 
 
 Thomson v. Walker [195] 
 
 Thorburn v. Brown 277 
 
 Thorley's Cattle Food Company 
 
 v. Mai'sam . ... .56, 364 
 
 Thorn v. Seel 176 
 
 " Smith 152 
 
 Thorndike v. Hunt [125 
 
 Thomhill v. Manning [214 
 
 Thornton, Re [141j, [142], [16i; 
 
 Thorp v. Jackson 18^ 
 
 Thorp [140], [141 
 
 Thurgood, Re ... [12S' 
 
 Tice V. Meyers [211], [225 
 
 Tiel V. Barlow 330 
 
 Tiflfany v. BuUen 349 
 
 " Thompson . . .48, [260], [261] 
 
 Tilbury v. Brown 351 
 
 Tildesley v. Harper 202, 247 
 
 Tillet V. Charing Cross Bridge 
 
 Company [101] 
 
 " Stracey 391 
 
 Tilley v. Thomas 51 
 
 Timpson v. London and N. W. 
 
 Railway Company 357 
 
 Toghill V. Grant [130] 
 
 Tomline v. The Queen 279 
 
 Tomlinson, Re 62 
 
 Toms, Re [12.5], [128] 
 
 Toronto Gravel Road Company v. 
 
 Taylor 281 
 
 Torrance v. Chewett [179] 
 
 " Winterbottom [220] 
 
 Totten, Re [128], [135] 
 
 " Mclntyre [231] 
 
 Toumay, Ex parte [141] 
 
 'Jk 
 
xl. 
 
 TABLE OF CASES. 
 
 PAGE. 
 
 Towle.Ke [134], [135] 
 
 Townsend, Ee [170] 
 
 " V. Townsend 48 
 
 Township of Hamilton v. Ste- 
 
 [224- 
 117' 
 235= 
 
 7i 
 
 237 
 123 
 
 18; 
 
 lfi4 
 119 
 134 
 
 phenson . 
 
 Townsley v. Neil 
 
 Tracey v. Iredale 
 
 Trainer v. Hobcombe 
 
 Travis v. Illingworth [162 
 
 Treleaven v. Bray 208, 210 
 
 Tremayne, Re [125] 
 
 Trent V.Hunt 50 
 
 Trick.Re. [142] 
 
 Trowell v. IShenton. 75, 2G4 
 
 Trower, Re [141] 
 
 Trowes, Re [140] 
 
 Trulock V. Robey [226] 
 
 Truslove v. Whitechurch 133 
 
 Trust and Loan Company v. Rey- 
 nolds [207], [227: 
 
 Trust and Loan Co. v. Start .... 
 
 Tucker v. Wilkins 
 
 Tudor v. Morris 
 
 Tunstall, Re [163], 
 
 Turbutt, Re 
 
 Turner, Ex parte 
 
 " V. Bayley " 28§ 
 
 " Burkenshaw 281 
 
 Hednesford Gaa Co . . 39 
 
 Heyland 377 
 
 Jones 351, 353 
 
 " MoUineux [170] 
 
 " Neill 327 
 
 '* Speakman [156] 
 
 " Turner 391 
 
 «' Wright 48 
 
 Tumey v. Bayley 281 
 
 Turquant v. Fearon 202, 250 
 
 " Wilson 292, 328 
 
 Turrill v. Turrill [237] 
 
 Twy cross v. Grant 355, 358 
 
 Tyler v. Bell 262 
 
 " Hinton [218] 
 
 " AYebb 79 
 
 Tynn v. Bellingley 291 
 
 ((' 
 
 Umphreville v. Johnson 
 
 Umplebey v. Waveney Valley 
 
 Railway Co 
 
 Underwood, Re [148], 
 
 Union Bank of London v. Ingram 
 
 United Kingdom Ass. Co., Re . . 
 United States v. Commissioners . 
 
 " Seaman 
 
 UpfuU, Re 
 
 202 
 
 [123] 
 ;i51] 
 [226], 
 
 [227] 
 
 "a 
 
 54 
 [138] 
 
 Val de Travers Co. v. London 
 
 Tramway Co 201 
 
 Yallance v. Birmingham Land 
 
 Corporation 204 
 
 Vane v. Lord Barnard 48 
 
 " Whittington 291 
 
 Vansandan v. Rose 365 
 
 Vanwinkle v. Chaplin ... .188, 197 
 
 Vardon v. Vardon 276 
 
 FAOE. 
 
 Vardy, Re [1331 
 
 Varteglron Works Chapel, Re.. 318 
 
 Vaughan v. Weldon 157 
 
 Vavasseur v. Krupp . . 241 
 
 Velati v. Braham 363 
 
 Ventilation and Sanitary Im- 
 provement Co. v. Ecleeten 242 
 
 Vemim v. Kinsie 56 
 
 Vernon 256, 265 
 
 Viall, Re [170] 
 
 Victoria Mutual Fire Insurance 
 
 Co. v. Bethune 34, 351, 353 
 
 Vines, Re [129] 
 
 Viney, Re 393 
 
 " V.Chaplin 330 
 
 Vivian v. Westbrooke [239], [259] 
 
 Vorley v. Richardson 295 
 
 Waddell V. Blockey ;i26 
 
 McCoU . . [194], [214], [228] 
 
 Smyth .. [193] 
 
 Wadeer v. East India Co . ._ 280 
 
 Wagner v. Mason ' 275 
 
 WagstaflF v. Smith 190 
 
 Wake v. Wake [160], [161], [173] 
 
 Wakefield v. Brown 391 
 
 Wakelee V. Davis 228,258 
 
 Waldron v. Mc Walter 380 
 
 " Thompson i:«, 10.1 
 
 Walker, Re [124], [148], [149] 
 
 " V. Balfour 206 
 
 Budden 304 
 
 " Easterley 378 
 
 " Fairfield 339 
 
 " . Fletcher 318 
 
 •' Hicka 131,175 
 
 " Niles 381 
 
 " Seligman . . 
 
 Wall V. Wall 
 
 Wallbriclge v. Martin 
 
 187, 
 
 254 
 119 
 212 
 
 Wallis v. Hepburn 265 
 
 Walsh, Ee [134] 
 
 [103] 
 
 Walsh 
 Walter v. JeSries 
 
 51 
 
 Walton, Re [126] 
 
 Ward, Re [109], [112], [178] 
 
 " V, Pilley 94 
 
 Swift [199] 
 
 Vance 350,351 
 
 Warde v. Warde 62 
 
 Warburton v. Cicognara [138] 
 
 Warden v. Trenouth 351 
 
 Warely v. Foapst liA 
 
 Waring, Ro [139], [141] 
 
 Wark V. Moulton 140 
 
 Warren v. Cotterell 197 
 
 " Love 162 
 
 " Taylor— Ross V.Taylor [213] 
 
 Warrender v. Foster [148] 
 
 Wartnaby v. Wartnaby 217 
 
 Washoe Mining Co. v. Ferguson. 381 
 
 Waterford v. Veale . , 208 
 
 Waters v. Earl of Shaftesbury . . 283 
 
 Waterton v. Croft 148 
 
 Watson, Ex parte [114] 
 
 " v. Brewer 166 
 
 1' 
 
 .^i 
 
TABLE OF CASES. 
 
 xli. 
 
 PAGE. 
 
 Watson V. Hawkins 221, 257 
 
 •' T .on A ' " 
 
 Moore": [195], [264] 
 
 Rodwell 221,222.250 
 
 Billain ! 381 
 
 [152] 
 
 vrBamett... 149 
 
 Hughes 148 
 
 Kelly ^79 
 
 Manning _-^2« 
 
 149 
 
 127 
 128 
 
 Watt, Re 
 Wattean v. 
 Watts, Re 
 
 [127 
 120 
 [127 
 Provincia . 
 
 Waugh, Re 
 
 '« Waddell.... 
 Wavell, Re 
 
 " V. National 
 
 Bank of England.. 44 
 
 Wayn v. Lewis [206 
 
 Weale v. Rice • • • • ■ [jfS 
 
 Webb, Re [1.38], [141 
 
 " V. Webb 1^^ 
 
 Webster v. Taylor 354 
 
 Wadderburn v. Pickering 135 
 
 Wedmore v. Corporation of Bristol [101 J 
 
 Weeding, Re [148], [1«1] 
 
 Weeks v. Stanton • • - 28i 
 
 Weir V. Taylor [219 
 
 " Weir [1«3 
 
 Weiss V. Crofts [187], [201], [237; 
 
 Welchman, Re [134 
 
 Weller v. Fitzhugh [142 
 
 Wellesley v. Wellesley 262, 263 
 
 Wells, Re [130], [133], [135; 
 
 " V.Maxwell 51 
 
 Welplyv. Buhl 395 
 
 Welsh V. Silwell [126] 
 
 Wesley v. Jones .'^ . . . . 148 
 
 Westacott v. Cockerline. . . . [237], [251] 
 
 Westbrooke v. Browett 24 
 
 Western Assurance Co. v. Capreol [215] 
 Western Canada Loan and Sav- 
 ings Co. V. Court 138 
 
 Western Canada Loan and Sav- 
 ings Co. V. Ince 58 
 
 Western Canada Oil Co., Re. .273, [190] 
 " " V.Walker 280, 281 
 
 Western Insurance Co 145 
 
 Westhead v. Sale [170] 
 
 Westman v, Aktiebolage Ekmans 156 
 
 Weston v. Tiler [160; 
 
 Westwood, Re 1 74 
 
 WhaUey, Re [130 
 
 " V. Williamson [130 
 
 Whatton v. Cradock [214; 
 
 Wheatley v. Bastow, Re Collins. [i25 
 
 Wheeler, Re [140], [1651, [170 
 
 Whetstone v. Dewis . •«{i4 
 
 Whistler v. Hancock 264, 265, 395 
 
 Whitaker v. Forbes 157 
 
 Whitby, Ex parte [166] 
 
 White, Re [158] 
 
 " v. Cochlin 172 
 
 • ' Courtney [195], [264] 
 
 " Cummings [241], [261] 
 
 Greathead 379 
 
 White V. Witt 
 
 Whitehead v. North 
 
 PAOB. 
 
 75 
 [182] 
 
 White 379, [104] 
 
 Whitelaw v. National Insurance 
 
 Co 307 
 
 Whitely v. Honeywell 149 
 
 Whitfield v. Roberts [214] 
 
 Whitling, Re [140] 
 
 Whitton, Re [142] 
 
 Wilcox V. Pillow 61 
 
 Wilde V. Wilde 242 
 
 Wilding V. Bolder [163] 
 
 Wilkins v. Bedford 41 
 
 " Reeves 187 
 
 Wilkinson, Re ...'.'.'.'..'.'.'. [161], [163; 
 
 Wilks v. Groom [151 
 
 Williams, Re. .[122], [132], [139], [178;^ 
 
 " V, Andrews 202 
 
 Bailey [103] 
 
 " Bryant 162 
 
 " Clough 397 
 
 Corby 157,315 
 
 Griffiths [126] 
 
 Page 202 
 
 " Prince of Wales As- 
 surance Co 283, 284 
 
 Salmond 198,201 
 
 " Snowdec 44 
 
 WiUiams .... 162, 312, [118] 
 
 Wright 41 
 
 Williamson v. London and North 
 
 Western Ry. Co 243, 250 
 
 Wilson V. j^tna Life Ass. Co 154 
 
 Baird 291 
 
 Bennett 295, [120] 
 
 BrunskiU 281 
 
 Church 202,203,278 
 
 " Dundas and Stephenson 347, 
 
 350 
 
 " Goodman 184 
 
 " Proudfoot [178] 
 
 Whately 295, [119] 
 
 Wilson 56,381, [102], 
 
 [103], [104] 
 
 Wiman v. Bradstreet 283 
 
 Wimburst, Hollick & Co. v. The 
 
 Barrow Ship Building Co 377 
 
 Wingrove v. Thompson 355 
 
 Winnett v. Renwick 78, 79 
 
 Winterbotham, Re [128 
 
 Winteringham, Re I 
 
 Winters v. Kingston Permanent 
 
 Building Society 339 
 
 Winthrop V. Murray 251 
 
 Wintle V. Williams 352 
 
 Wiscott's Case 49 
 
 WiHe,Re [148] 
 
 " V. Birkinshaw 352 
 
 Wiseman, Re [171] 
 
 Witham v. Vane 206, 210 
 
 Withington v. Withington [;i621 
 
 Witt V. Corcoran 72 
 
 Wolley V. Thomas 141 
 
 Wolverhampton and Staffordshire 
 
 Banking Co. v. Bond 148 
 
 Wood, Re 71, [166 
 
 " V. Bamicot 
 
BBB 
 
 xlii. 
 
 TABLE OF CASES. 
 
 FAQE. 
 
 Wood V. Beetleatone [160], [167] 
 
 " Boucher 383 
 
 Lambirth [194] 
 
 " McAlpine 51 
 
 Wood [107] 
 
 Woodbridge v. Noms 197 
 
 Woodbum, Re [141], 
 
 Woodfall V. Arbuthnot 
 
 Woodgate, Re 
 
 Woodhatch v. Francis 311, 
 
 Woodman v. Blair 
 
 171 
 165 
 162 
 239 
 273 
 
 WoodroflEe v. Titterton [183 
 
 Woods V. Woods 219 
 
 Woodside v. Toronto St. Railway 
 
 Company 156 
 
 Woodstock V. Niagara .... . . 246 
 
 Woodvine, Re 41 
 
 Woolet, Re [130] 
 
 Worley v. Glover 148 
 
 Wormsley v. Sturt [189] 
 
 Worraker v. Pryer 198 
 
 Worth V. McKenzie 152 
 
 Worthington v. Boulton .129, 132, 134, 
 
 138 
 Wortley, Re, Culley & Wortley . 203 
 
 Wragg, Ex parte [109] 
 
 Wright, Re [139], [140], [141] 
 
 " V. Angle 165 
 
 " Clifford 305 
 
 Garden 191 
 
 " Morgan 168, [223] 
 
 *' Redgrave 46 
 
 " Smith 291 
 
 FAOB. 
 
 Wright V. Swindon, Marlboro', 
 and Andover Rail- 
 way Company 266, 357 
 
 Way 147 
 
 Wilkin 273, [190 
 
 " Woodham.. , [119' 
 
 " Wright [225 
 
 Wyatt V. Sadler [182 
 
 Wye Valley R'y Co. v. Hawes. .208, 20S 
 Wyld V. The Liverpool and Lon- 
 don and Globe Insurance Co. . . 69 
 
 Wylde, Re [166] 
 
 Wyllie V. EUice [379] 
 
 Wylle, Re [141] 
 
 Wymer v. Dodds 204 
 
 V/ynne v. Humberstone 279, 281 
 
 " LordNewburgh [199] 
 
 Yaggie, Re [204], [229] 
 
 Yeoman v. Haynes [187] 
 
 Yetts, Re [127] 
 
 " v. Foster 321 
 
 York and Midland Railway Co. 
 
 v. Hudson 236 
 
 Yorkshire Banking Co. (Limited) 
 
 V. Beatson & Wycock 177 
 
 Yorkshire Wasrgun Company v. 
 
 Newport Coal Co 206, 208, 209 
 
 Young, Re [140] 
 
 " v. Brassey 157,318 
 
 " Crompton 133 
 
 " Kitchell 38,219 
 
 Ward 187 
 
m^mmmm 
 
 TIME TABLE, 
 
 Shewing the periods, within which, the various proceedhigs are to be taken. 
 
 * 
 
 1* 
 
 <f,-. 
 
 I*- 
 
 AFFIDAVITS, EVIDENCE BY :— 
 
 Plaintiff to deliver list of affidavits within 14 
 
 days after consent Ord. XXXIV. , r. 1 
 
 Defendant to deliver list of affidavits within 
 
 14 days after receiving plaintiffs list .... " 2 
 
 Plaintiff to deliver list of affidavits in reply 
 
 within 7 days after expiration of said 14 
 
 days ** 8 
 
 Deponents to be produced at trial, if notice 
 
 served before expiration of 14 days, next 
 
 after end of time allowed for affidavits in 
 
 reply " 4 
 
 AMENDMENT :— 
 
 By plaintiff once without leave any time be- 
 fore reply and before expiration of time 
 
 for replying Ord. XXIH., r. 2 
 
 If no defenc'j delivered then before expiration 
 
 of 4 v,eeks from last appearance " 2 
 
 By Defendant without leave, where set-off or 
 
 counter-claim, before pleading to reply and 
 
 before expiration of time for such pleading " 3 
 
 If no reply then within 28 days from 
 
 filing of defence " 3 
 
 After any amendments opposite party may, 
 
 within 8 days after delivery thereof, move 
 
 to disallow " 4 
 
 Or may without leave within 4 days 
 
 amend his former pleading " 6 
 
Xliv. TIME TABLE. 
 
 Amendments must be made within 14 
 days from date of order unless otherwise 
 provided 
 
 APPEAL OOn^T OF, SITTINGS :— 
 
 Five J? '> ■ csach year, commencing : 
 2nd Tuesday iu January. 
 Iff " March. 
 2nd jixny. 
 Ist " September. 
 2nd " November 
 
 Ord. XXIII., r. 8 
 
 53 
 
 APPEALS FROM HIGH COURT :— 
 
 Notice to be given to Clerk of Crown or Reg- 
 istrar of Court within 1 month, and proper 
 security to be given within 3 months after 
 judgment complained of 
 
 BoxD to be deemed perfected unless moved 
 against within 14 days after notice of de- 
 posit served 
 
 Draft case, respondent to return within 4 
 days 
 
 Notice to settle case if parties diflFer, 2 days' 
 notice 
 
 Reasons of appeal, appellant shall deliver 
 
 with draft case 
 
 Respondent shall serve reasons within 
 10 days after such service 
 
 Printed case to be delivered to Registrar 
 within 30 days after allowance of security 
 
 Entry for argument at next regular sittings, 
 which shall commence at least 8 days after 
 deposit of case 
 
 Motions, 2 clear days' notice 
 
 Settling certificate, 2 clear days' notice .... 
 
 APPEALS FROM COUNTY COURT :— 
 
 Entry for Argument at first sittings, which 
 shall commence after the expiration of 30 
 days from decision, complained of 
 
 Jud. Act, sec. 
 
 38 
 
 App., Ord. 7 
 
 tt 
 
 9 
 
 tt 
 
 9 
 
 ■'1 
 
 U 
 
 -' tt 
 
 U 
 
 t* 
 
 21 
 
 
 22 
 
 u 
 
 26 
 
 II 
 
 81 
 
 (( 
 
 40 
 
J!S»m--iit 
 
 ^^V J-y ,i'-W^»l 
 
 ;tl 
 
 TIME TABLE. 
 
 Cert'^ed copy pleadings and 10 appeal books to 
 be delivered to Registrar at least 8 days 
 before sittings 
 
 NoTicB OP SETTING DOWN and copy of book to be 
 served at least 6 days' before the sittings... 
 
 Motions to allow appeals where rules not 
 complied with, 2 days' notice 
 
 APPEAL COURT RULES :— 
 
 Long vacation commences 1st July, terminates 
 31st August ; Christmas vacation com- 
 mences 24th December, terminates 2nd 
 January. First and last days both included 
 
 Time of vacation not counted in time for any 
 Act, except in County Court Appeals .... 
 
 CoDRT OR JuDOB has power to enlarge or 
 abridge times 
 
 Where days not stated to be clear days, 
 exclude first and include last 
 
 If expressed to be clear days, both days 
 to be excluded 
 
 xlv. 
 
 App. , Ord. 41 
 48 
 60 
 
 « 
 
 ft 
 
 « 
 
 C( 
 
 (( 
 
 (C 
 
 66 
 
 57 
 68 
 69 
 60 
 
 APPEALS FROM CHAMBERS :— 
 
 Within 8 days after decision. If no Court 
 
 within that period, then on first day on 
 
 which Court sits Ord. XLVIII. , r. 8 
 
 From County Judge, Master in Chambers, 
 
 Local Master, with 8 days after decision. Ord. XLIX., r. 13 (c) 
 Notice must be served within 4 days " (6) 
 
 APPEARANCE:— 
 
 Within Jurisdiction, 10 days after service . . Ord. 11. , r. 6 
 
 Without Jurisdiction, see Ord. VII. , r. 2 
 
 By third party, 8 days after service Ord. XII., r. 22 
 
 By dependant to counter-claim, same period 
 
 as defendant in writ of summons Ord. XVIII., r. 7 
 
 Ejectment, where defence limited, notice to 
 
 be served within 4 days after appearance. . Ord. VIII., r. 17 
 Where defence limited to question of 
 
 amount only, notice to be served within 
 
 4 days after appearance Ord. VIII., r. 19 
 
'i' 
 
 Xlvi. TIME TABLE. 
 
 AWARD :— 
 
 Judgment may be signed uponAafter expira- 
 tion of 14 days after service of a copy of 
 award Ord. XXIX., r. 3 (e) 
 
 COMMISSION :— 
 
 Interrogatories to be delivered at least 8 days 
 
 before issue of commission Ord. XXXII. , r. 6 
 
 Cross-Interrogatories to be delivered within 
 4 days after receipt of interrogatories in 
 chief W 6 
 
 Notice of Execution of commission, 48 hours ** 7 
 
 If any Commissioner refuses to act upon re- 
 ceiving 48 hours' notice, commission may , 
 be executed by the commissioner giving the , 
 notice " - 18 
 
 COUNTY COURT:— 
 
 Sittings to commence on first Tuesday instead 
 
 of Monday in April and October Ord. LX., r. 2 
 
 (/Sfee " Appeal.") 
 
 COUNTER-CLAIM:— 
 
 Motion to Exclude, within 3 weeks from de- 
 livery , Ord. XIX., r. 9 
 
 DEFENCE :— 
 
 Limiting to question of amount only by notice 
 
 served within 4 days after appearance .... Ord. VIII. , r. 19 
 
 {See " Statement of Defence.") 
 
 DEMURRER :— 
 
 Entry for Argument and notice given (same 
 
 day) within 10 days after delivery Ord. XXIV., r. 7, 7(a) 
 
 EJECTMENT :— 
 
 Limiting Defence, notice to be served within 
 
 4 days after appearance Ord. Vlii. , r. 17 
 
 EXAMINATION OF JUDGMENT DEBTOR :— 
 
 Appointment to be served 48 hours before time 
 
 appointed Ord. XLI. , r. 4 
 
TIME TABLE. xlvii. 
 
 EXECUTION :— 
 
 In case of Non-Appbarancb at expiration of 
 
 8 days from last day for appearance Ord. IX. , r. 4 
 
 May be Issued at any time within 6 years from 
 
 the recovery of judgment Ord. XXXVIII., r. 17 
 
 INFANT :- 
 
 If no Guardian appointed within 7 days after 
 time for appearance, plaintiff may serve 
 official guardian Ord. IX. , r. 2 
 
 INSPECTION :— 
 
 Paety receiving Notice to produce, shall with- 
 in 2 days, or in certain case 4 days, serve 
 notice of time for inspection, which must 
 be within 3 days Ord. XXVII., r. 14 
 
 JUDGMENT:— 
 
 NoN-APP?i!ARANCE, Writ not specially indorsed, 
 but demand liquidated, 8 days after state- 
 ment of claim Ord. IX. , 6 
 
 Appiication for le^ve to Enter, 2 clear days' 
 
 notice Ord. X. , r. 2 
 
 MOTION FOR JUDGMENT :— 
 
 After Trial of Issues of fact, if plaintiff do not 
 set down within 10 days after his right to 
 
 do so has arisen, defendant may set down. Ord. XXXVI.', r. 4 
 No Motion can be set down after lapse of one 
 year from time when right to set down first 
 accrued " 6 
 
 MOTIONS:— 
 
 Notice must be 2 clear days Ord. XLVII. , r. 4 
 
 NEW TRIAL;— 
 
 Order to shew Cause returnable at expira- 
 tion of 8 days from date of order Ord. XXXV. , r. 2 
 
 And to be served within 4 days from time 
 
 when made <* 4 
 
 Motion for, within first 4 days of sittings of 
 
 Division Court " 3 
 
 »;;i 
 
 ',f.;.i 
 
Xlviii. TIME TABLE. 
 
 In case judgment reserved and given dur- 
 ing sittings, then within 10 days after 
 decision, if so many days expire in such 
 sittings; if not, then, within first 4 
 days of ensuing sittings Ord. XXXV. 
 
 In case of trial during sittings, then with- 
 in 6 days after verdict, if so many days 
 expire during sittings ; if not, then, 
 within first 4 days of ensuing sittings 
 
 (( 
 
 3(a) 
 
 3(6) 
 
 ORDER ON CHANGE OF PARTIES :— 
 
 Ai'PLiCATiON TO Discharge, or vary, order must 
 be within 12 days from service 
 
 In case of Person under Disability within 
 12 days from appointment of guardian .... 
 
 If Party Served out of Jurisdiction, then 
 within same time as a defendant has to 
 appear to a writ of summons 
 
 Ord. XLIV., r. 6 
 7 
 
 « 
 
 H 
 
 8 
 
 PAYMENT INTO COURT :— 
 
 Plaintiff may within 4 days after receiving 
 notice of payment into Court, or if payment 
 first stated in defence, before reply, accept 
 same in satisfaction 
 
 Ord. XXVL, r. 4 
 
 PLEADINGS :— 
 
 Defence to Set-off or Cotjnter-Claim arising 
 after action, may be pleaded by plaintiff 
 within 3 weeks after defence or last of de- 
 fences delivered 
 
 If matter arises after 3 Weeks may be 
 pleaded within 8 days after it arises 
 
 Defence arising after Delivery of Defence, 
 defendant may, within 8 days after it arises, 
 deliver a further defence. (See Statement 
 of Claim ; Statement of Defence) 
 
 Ord. XVI., r. 2 
 « 4 
 
 (( 
 
 PLEADINGS :— 
 
 Subsequent to Reply to be delivered within 
 4 days after delivery of previous pleading . . 
 
 Ord. XX., r. 3 
 
wa 
 
 TIME TABLE. xHx. 
 
 PRODUCTION :— 
 
 Orubr may be obtained directing Iverse party 
 
 to produce within 10 days after service XXVII. , r. 4 
 
 REPLY :— 
 
 To BE DELiVKRED within 3 weeks after defence, 
 
 or last of defences, delivered Ord. XX., r. 1 
 
 To COUNTER-CLAIM — same periods as for State- 
 ment of Defence Ord, XVIII., r. 8 
 
 SECURITY FOR COSTS :— 
 
 Time limited by order, 4 weeks Ord. L. , r. 4 
 
 SERVICE— (See "Appearance.") 
 
 SITTINGS OF HIGH COURT :— 
 
 Michaelmas. —Third Monday in November to 
 
 Saturday of second week thereafter 
 
 Hilary. — First Monday in February to Saturday 
 
 of following week 
 
 Easter. — Third Monday in May to Saturday of 
 
 second week thereafter Ord. LVII. , r. 1 (a) 
 
 STATEMENT OF CLAIM :— 
 
 To BE delivered witliin three months after 
 
 appearance Ord. XVII. , r. 1 
 
 Wliere defetidant added by amendment, to 
 be delivered with writ of summons 
 or notice, or within 4 days after 
 appearance Ord. XII. , r. 18 
 
 STATEMENT OF DEFENCE :— 
 
 To be delivered within 8 days from delivery 
 
 of statement of claim Ord. XVIII. , r. 1 
 
 If no statement of claim, then within 8 days 
 
 after appearance " 2 
 
 If after order for time, then within 8 days 
 
 after order *' 3 
 
 TRIAL :— 
 
 Usual notice of trial, 10 days Ord. XXXI., r. 6 
 
 Short " 5 " " 6 
 
 4 
 
 I mi, 
 
 m 
 
 I 
 
1. TIME TABLE. 
 
 Entry for trial, not later than third day next 
 before first day of Assizes ur Sittings .... 
 
 WRIT OF SUMMONS :— 
 
 In force for 12 month.s from date 
 
 Indorsement of service must be within 3 days 
 after service 
 
 Ord. XXXI. , r. 11 
 
 Ord. V. , r. 1 
 Ord. VI., r. 12 
 
 r 1 
 
 1:1 i 
 
 Rule 
 
 (I 
 
 (I 
 
 GENERAL PROVISIONS UNDER ORDER LII. 
 
 1. — Months means calendar months, unless otherwise expressed. 
 2. — In computing periods less than 6 days, holidays are not reckoned. 
 3. — In computation of days, exclude first day and include the last, 
 
 except where the term " clear days " used. 
 4. — If last day falls on a Sunday, or other day on which offices are 
 
 closed, performance of act upon next day on which offices 
 
 are open is sufficient. 
 5.- Services must be effected before 6 p.m., (on Saturdays before 2 
 
 p.m.) Service after that hour counts as service on next 
 
 day (or Monday). 
 0. — Pleadings not to be delivered or amended during long vacation. 
 7. — Long vacation not computed in time for : — 
 
 (1) Filing, delivering or amending pleadings. 
 
 (2) Filing statements of defence to original or amended 
 
 claim. 
 
 (3) Amending or obtaining orders for leave to amend. 
 
 (4) Setting down demurrers. 
 
 (5) Filing replications or setting down causes under G. O. 
 
 Chy. 162-155. 
 
 (6) Master's reports becoming absolute. 
 
 (7) Moving to discharge an order on change of parties by 
 
 death, etc, 
 
 (8) Moving to add to, vary, or set aside a decree by any 
 
 party served therewith. 
 
 (9) Or for the proceedings substituted by the Act or Rules 
 
 for any of the proceedings, 2-8. 
 8. — The Court or a Judge may enlarge or abridge any such periods. 
 
Hi 
 
 TABLE 
 
 SHEWING THE SOURCES FROM WHICH THE ONTARIO 
 JUDICATURE ACT HAS BEEN COMPILED. 
 
 The references in the right hand column to the Ontario Act and Orders 
 are distinguished by the use of Arabic numerals only, when the reference 
 is to the Act ; and of Roman numerals (sometimes followed by Arabic) 
 when the Orders are referred to. For example, "sec. 07, s.-s. 3," means 
 section 67 of the Act, sub-section 3 ; and "Order XXXVIIL, Rule 3," 
 means Order 38, Rule 3. 
 
 Imperial Statutes. 
 
 15 ftnd 16 Vic, cap. 76 (Com. Law Pro. 
 
 Act, 1852). 
 
 Sec. 7 
 
 " 13 
 
 " 15 
 
 " 17 
 
 " 19 
 
 '« 27 
 
 " 28 
 
 " 29 
 
 " 33 
 
 " 40 
 
 " 41 
 
 " 53 
 
 " 63 
 
 " 68 
 
 " 69 
 
 " 94 
 
 " 172 
 
 " 177 , 
 
 " 222 
 
 16 and 16 Vic, cap. 86. 
 
 Sec 45 and 47 
 
 " 42 
 
 •' 42 
 
 " 52 
 
 17 and 18 Vic, cap. 125 (Com. Law Pro. 
 
 Act, 1854), sec. 96 
 
 ** " 257 
 
 22 and 23 Vic, cap. 12, sec'i! '.'.'..'.'.'.'.'. 
 
 23 and 24 Vic, cap. 126 (Com. Law Pro. 
 
 Act, 1860), Sec 36 
 
 31 and 32 Vic, cap. 72 
 
 36 and 37 Vic, cap. 66 (Judicature Act. 
 1873). 
 
 Sec 2 
 
 " 3 
 
 Ontario Act and Orders. 
 
 Order IV., Rule 1 (6). 
 Order v., Rule 2. 
 Order VI., Rule 12 (a). 
 
 I< on 
 
 Order II., Rule 4. ' 
 
 Order IX., Rule 4. 
 
 " " 6. 
 
 <« <( Y 
 
 " " 8. 
 
 Order XIII., Rule 4. 
 
 " "18. 
 
 Order XVI., Rule 2.' 
 Order XVIII., Rule 1. 
 Order XVI., Rule 3. 
 
 Order IX., Rule 7. ' 
 Order VIII., Rule 14. 
 Order IX., Rule 8. 
 Order XXIII. , Rule 2. 
 
 Order XI., Rule 1. 
 Order XII., Rule 7. 
 " 14. 
 Order XLIV., Rule 3. 
 
 Order XXIII., Rule 2. 
 Order IX., Rule 9. 
 Sec. 90, S.-8. 1. 
 
 Order XXIII., Rule 2. 
 Sec. 5. 
 
 Sec. 2. 
 " 3. 
 
 
 «!: 
 
Hi 
 
 2 
 
 COMPARATIVE TABLE. 
 
 Imperial Statutes. 
 
 Ontario Act amd Ordbbs. 
 
 36 and 37 Vic, cap. 66 (Judicature Act, 
 
 
 
 1873). 
 
 
 
 
 
 Sec. 4. 
 
 
 
 Sec 
 
 . 3, 8.-8. 2. 
 
 " 5. 
 
 
 
 
 
 3, 8.-8. 4, 5, 7. 
 
 •• 9. 
 
 
 
 
 5. 
 
 " 11. 
 
 
 
 6. 
 
 '• 12. 
 
 
 
 
 7; 7, 8.-S. 2. 
 
 " 16. 
 
 
 
 
 9; 9, 8. -8. 2. 
 
 " 18. 
 
 
 
 
 13, 37. 
 
 •' 19. 
 
 
 
 
 13, 14, 15, 37. 
 
 " 22. 
 
 
 
 
 10, 11 ; 11, 8. -8. 2, 3. 
 
 *' 23. 
 
 
 
 
 12. 
 
 " 24. 
 
 
 
 
 16. 
 
 ♦' 24, 
 
 8. -8 
 
 .1 
 
 
 If^, 8.-fl. 2. 
 
 " 24, 
 
 <( 
 
 2 
 
 
 3. 
 
 " 24, 
 
 <( 
 
 3 
 
 
 " 4. 
 
 " 24, 
 
 « 
 
 4 
 
 
 " 5. 
 
 " 24, 
 
 <( 
 
 5 
 
 
 6. 
 
 *' 24, 
 
 (I 
 
 6 
 
 
 " 7. 
 
 " 24, 
 
 <i 
 
 7 
 
 
 8. 
 
 " 25 
 
 
 
 
 17. 
 
 " 25, 
 
 S.-8 
 
 2 
 
 17, 8.-8. 2. 
 
 " 25, 
 
 (1 
 
 3 
 
 
 " 3. 
 
 " 25, 
 
 i( 
 
 4 
 
 
 4. 
 
 " 25, 
 
 (1 
 
 5 
 
 
 5. 
 
 " 25, 
 
 (( 
 
 6 
 
 
 6. 
 
 '• 25, 
 
 << 
 
 7 
 
 
 " 7. 
 
 " 25, 
 
 (< 
 
 8 
 
 
 8. 
 
 » *' 25. 
 
 .( 
 
 10 
 
 
 " y. 
 
 " 2.5, 
 
 (( 
 
 11 
 
 
 10. 
 
 " 26. 
 
 
 
 
 18, 19. 
 
 " 27. 
 
 
 
 
 20. 
 
 •' 28 
 
 
 
 
 21. 
 
 " 29. 
 
 
 
 
 22. 
 
 •' 31. 
 
 
 
 
 3. S.-8. 3. 6. 8. 
 
 " 33. 
 
 
 
 23. 
 
 " 34. 
 
 
 
 
 
 24. 
 
 " 36. 
 
 
 
 
 26. 
 
 " 38. 
 
 
 
 
 27. 
 
 ♦' 39. 
 
 
 
 
 
 28,8.-8. 3. 
 
 " 40. 
 
 
 
 
 29, 8.-8. 6. 
 
 " 41. 
 
 
 
 
 30; 31,8.-8.(6). 
 23. 
 
 " 42. 
 
 
 
 <( 
 
 " 45. 
 
 
 
 
 33, 34, 
 
 " 46. 
 
 
 
 
 28, 8. -3. 2. 
 
 " 49. 
 
 
 
 
 
 32. 
 
 " 50. 
 
 
 
 
 36, 37. 
 
 " 51. 
 
 
 
 
 40. 
 
 " 52. 
 
 
 
 
 41. 
 
 " .56. 
 
 
 
 
 47 ; 47, 8.-8. 2. 
 
 " 57. 
 
 
 
 
 48; 48, B.-8. 2; 63. 
 
 " 58. 
 
 
 
 
 49. 
 
 " 59. 
 
 ■ • ■ • 
 
 
 
 50. 
 
 " 61. 
 " 64. 
 
 ... 
 
 
 " 8, 51. 
 Order VIII.. Rule 1. 
 
 " 73. 
 
 
 
 Sec 
 
 .52. 
 
 " 75. 
 
 
 
 " 
 
 56. 
 
 " 76. 
 
 • • • 
 
 
 
 57. 
 
 *' 77. 
 
 • ■ • • 
 
 
 
 58, 8.-8. 5; 59. 
 
 " 82. 
 
 
 
 
 73. 
 
 • " 83. 
 
 
 
 
 63; 63, 8. -a. 2. 
 
 74, 8. -8. 3. 
 
 •' 87 
 
 
 " 89. 
 
 
 
 77. 
 
 *' 90. 
 
 
 
 
 78. 
 
COMPARATIVE TABLE. 
 
 Imperial Statutes. 
 
 36 and 37 Vic, cap. 66 (Judicature Act, 
 1873). 
 
 Sec. 91 
 
 " 92 
 
 " 93 
 
 " 100 
 
 33 and 39 Vic, cap. 77 (Judicature Act, 
 1875). 
 
 Sec 4 
 
 " 5 
 
 " 6 
 
 " ll, &.-8. 1 
 
 12 
 
 16 
 
 17 
 
 19 
 
 21 
 
 22 
 
 24 
 
 33 
 
 "63 
 
 39 and 40 Vic, cap. 59, "Appellate Ju- 
 
 risdiction Act, 1876," sec. 17 
 
 40 and 41 Vic- , cap. 57 "Supreme Court 
 
 of Judicature Act (Ireland), 1877," 
 
 86C 4 
 
 42 and 43 Vic, cap. 78, "The Supreme 
 Court of Judicature Officers' Act, 
 1879." 
 
 Sec 23 
 
 " 24 
 
 English Orders and Rules. 
 
 Regules-Generales H. T. 1853, No. 3. . . 
 
 No. 174. 
 
 Con. Orders Chancery. 
 
 Ontabio Act and Orders. 
 
 « 
 
 <i 
 
 II 
 
 Rule 
 Order I., 
 
 8 Si 
 
 Rule 
 
 t( 
 l( 
 
 Rul 
 
 II 
 
 II 
 II 
 II 
 
 II 
 
 ,Ri 
 , R, 
 Rul 
 
 ti 
 
 li 
 it 
 <( 
 It 
 tt 
 
 ,Ri 
 
 premk Court, 1875. 
 1 
 
 II 
 
 2 
 
 II 
 
 3 
 
 Order II., 
 
 el 
 
 • 1 ' 
 
 2 
 
 II 
 
 3 
 
 II 
 
 4 
 
 II 
 
 5 
 
 <i 
 
 8 
 
 Order III 
 
 lie 7 
 
 (( 
 
 ' 8 
 
 Order IV 
 
 alel 
 
 <i 
 
 " 2 
 
 Order V., 
 
 e 1 
 
 II ' 
 II 
 
 2 and 3 
 
 4 
 
 II 
 
 5 
 
 II 
 
 6.. 
 
 II 
 
 7 
 
 II 
 
 8 
 
 Order VI. 
 
 lie 1 
 
 Sec. 80. 
 " 82. 
 " 85. 
 " 91. 
 
 Sec. 4. 
 
 3, B.-s. 6 ; sec. 5. 
 
 3, s.-s. 7. 
 25, s.-s. 2. 
 35, 42, s.-s. 2. 
 53. 
 
 54, s.-s. {d), s.-s. 4. 
 87. 
 
 52, 87. 
 28, s.-s. 2. 
 54, s.-s. 6, 7. 
 90, s.-s. 2. 
 91 (b). . 
 
 28 ; 28, s.-s. 2 ; 29, s.-s. 6 ; 44, 55. 
 
 Sec. 3, s.-s. 3. 
 
 Sec. 58, s.-s. 3. 
 " 68, S.-S. 4. 
 
 Order VIII., Rule 11. 
 Order LIL, Rule 3. 
 
 Order VI., Rule 2. 
 
 Order I., Rule 1. 
 
 << 
 
 " 2. 
 
 (I 
 
 " 4. 
 
 Order II., 
 
 Rule 1. 
 
 . ( 
 
 " 2. 
 
 It 
 
 " 3. 
 
 Order VII 
 
 
 Order II., 
 
 Rule 4. 
 
 (( 
 
 " 5. 
 
 Order III. 
 
 , Rule 5. 
 
 (1 
 
 " 6. 
 
 Order III. 
 
 , Rule 8 (a) 
 
 tt 
 
 " 9 (6). 
 
 Order III. 
 
 , Rule 10. 
 
 II 
 
 " 12. 
 
 <i 
 
 " 11. 
 
 II 
 
 " 13. 
 
 II 
 
 " 14. 
 
 >i 
 
 " 15. 
 
 11 
 
 " 16. 
 
 Order III 
 
 , Rulo 17. 
 
 
COMPARATIVE TABLE. 
 
 aii 
 
 f5i> 
 
 BULES SUPBEMK CoDRT, 1876. 
 
 Order VI,, Rule 2 
 
 Order VII., Rule 1 
 
 Order VIII., Rule 1 .* ." .' .' '. '. '. '. '.'.'.. 
 
 «« " 2 
 
 Order IX., Rule 1 
 
 «< <« 2 
 
 .t <i 4 
 
 (i " 4 
 
 " " 6 
 
 <( "7 
 
 " " 8 !!!!!!!!!!!!!!!! 
 '* 13 
 
 Order X 
 
 Order XI 
 
 Order XL, Rule 1 
 
 Order XIL, Rule 1-5 
 
 " " 5 
 
 II II ^ 
 
 •• •' 8.'. ......... .. 
 
 * t . 11 9 
 
 "■ " lo'.'.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 " " 11 
 
 •• " 12 
 
 " " 13 
 
 *■*■ " 14 
 
 ** " 15 
 
 ♦« • " 18 
 
 «» " 19 
 
 *« " 20 
 
 «* '« 21 
 
 II II 22 
 
 Order XIIL, Rule i. '..'.'. '.'.'.'.'.'. 
 " " 2 
 
 •' " 3 
 
 «« II 4 
 
 " " 5.'.'.'........... 
 
 " " 6 
 
 t< II IT 
 
 " " 8.............. 
 
 Order XIV., Rule 1 
 
 " " 2 
 
 " " 3 
 
 • I II 4 
 
 " " 5......'......'.'. 
 
 " " 6 
 
 Order XV., Rule 1 
 
 II II 2 
 
 Order XVI., Rule 1.'.'.'. .'.'.'.'.'.".'.'. 
 II II 2 
 
 " " 3....'...'.'....'.'. 
 •« <« 4 
 
 •• " o.............. 
 
 " " 6 
 
 « II y 
 
 •' " 8'.'.......'.'...'.'.. 
 
 " " w.'.'.'. .'.'.'.'.\'.'.'.y. 
 •• " 11 
 
 «• " 13 
 
 '• " 14 
 
 ♦• " 15 
 
 " •• 16 
 
 Ontario Act an. Obdbbs. 
 
 Order IIL, Rule 18. 
 
 Order IV., Rule 1 (6). 
 
 " 2 (6). 
 
 Order v., Rule 1(c). 
 II II 2 
 
 Order VL, Rule 1. 
 II II 2 
 
 " 4'(c.) 
 
 " " 5. 
 
 " " 6. 
 
 " 8. 
 
 • 10. 
 
 " n. 
 
 it 
 
 " 12 (a.) 
 
 Order VI. , 
 
 Rule 2. 
 
 Order VII 
 
 
 Order VII 
 
 , Rule 1 (c) 
 
 Order VIII. . Rule 1. 
 
 II 
 
 " 2. 
 
 II 
 
 " 3. 
 
 11 
 
 " 4. 
 
 II 
 
 " 5. 
 
 II 
 
 " 6. 
 
 II 
 
 " 7. 
 
 II 
 
 " 8. 
 
 II 
 
 " 10. 
 
 II 
 
 '• 11. 
 
 II 
 
 " 12. 
 
 II 
 
 " 14. 
 
 II 
 
 " 15. 
 
 i< 
 
 " 16. 
 
 II 
 
 " 17. 
 
 II 
 
 '• 18. 
 
 Order IX., 
 
 1( 
 
 Rule 1 (a). 
 
 II o 
 
 (( 
 
 " 4. 
 
 it 
 
 " 5. 
 
 it 
 
 " 6. 
 
 it 
 
 " 7. 
 
 it 
 
 " 8. 
 
 i 1 
 
 " 9. 
 
 Order X., Rule L 
 
 II 
 
 " 2. 
 
 II 
 
 " 3. 
 
 II 
 
 " 4. 
 
 II 
 
 " 5. 
 
 II 
 
 " 6, 
 
 Order XL, 
 
 Rule 1. 
 
 II 
 
 " 2. 
 
 Order XIL 
 
 , Rule 1. 
 
 II 
 
 " 2. 
 
 II 
 
 •* 3. 
 
 II 
 
 '• 4. 
 
 II 
 
 " 5. 
 
 II 
 
 " 6. 
 
 II 
 
 " 7. 
 
 II 
 
 " 9. 
 
 II 
 
 " 10. 
 
 II 
 
 " 12. 
 
 II 
 
 " 14. 
 
 II 
 
 " 16. 
 
 11 
 
 " 10. 
 
 II 
 
 " 17. 
 
 II 
 
 " 18. 
 
COMPARATIVE TABLE. 
 
 5 
 
 Rules Supbemb Court, 1875. 
 
 Order XVI., Rule 17 
 
 " 18 
 
 " " 19 
 
 " 20 
 
 " " 21 
 
 Order XVII., Rule 1 
 
 " " 2 
 
 " " 3 
 
 " " 4 . 
 
 " " 5........... 
 
 •' 6 
 
 It it ff 
 
 " " B........... 
 
 " " 9 
 Order XVIII., Rule i.V.'^ .'.'.'.'.'. . 
 
 Order XIX., Rule 1 
 
 " " 2 . 
 
 " " 2 
 
 " " 2 
 
 " "2 
 
 •• <• 3 
 
 " " 3 
 
 «< << 4 
 
 " " 5... .".'.'.'.v.'.'. 
 
 " " 5 
 
 " 6 
 
 t( (1 IT 
 
 " " 8.'..'.'.'..'.'.".. 
 
 " "9 
 
 " " 24 
 
 " 25 
 
 " " 26 
 
 " " 27 
 
 " " 28 
 
 «« '< ii 
 
 '• " 23'.'.'.'.'.'.'.'.'.'.'.'. 
 
 " 13 
 
 " 14 
 
 " III 
 
 " lo 
 
 " 18 
 
 " " 21 
 
 " 19 
 
 Order XX., Rule 1 
 
 " 12 
 
 " " 2 
 
 " " 2 
 
 " 3;. ...;;■;■;■ 
 " << 4 
 
 Order XXL, Rule l! !!!".'. 
 
 " 1(6) ;: 
 
 " 1(c) 
 
 • « "4 
 
 Order XXIL, Rule 1.'.'.'.'. 
 
 " 2 
 
 " 3.;;". 
 
 " << 4 
 
 " 5.'::".:; 
 
 " 6 
 
 « (I IT 
 
 " 8.'.'.'.'. 
 
 « « 9 
 
 " " 10'.'.'.'.'.'.''"." 
 
 Ontario Act and Ordbbs. 
 
 Order XIL, Rule 19. 
 
 " 20(c). 
 " 21. 
 " " 22. 
 
 (< 
 
 II 
 
 23 (a). 
 
 Order XIIL, 
 
 Rule 1. 
 
 «» 
 
 II 
 
 2. 
 
 « 
 
 11 
 
 3. 
 
 << 
 
 II 
 
 4. 
 
 « 
 
 II 
 
 5. 
 
 i< 
 
 II 
 
 6. 
 
 i< 
 
 II 
 
 7. 
 
 « 
 
 II 
 
 8. 
 
 C( 
 
 II 
 
 9. 
 
 Order XIV., 
 
 Rule 1. 
 
 Order XV., 
 
 Rule 1. 
 
 (( 
 
 II 
 
 2. 
 
 << 
 
 II 
 
 2 (a. 
 
 
 II 
 
 2(6. 
 
 St 
 
 11 
 
 2(c. 
 
 (( 
 
 II 
 
 3. 
 
 << 
 
 1. 
 
 3(a). 
 
 l< 
 
 
 3(6). 
 
 <l 
 
 II 
 
 4. 
 
 it 
 
 II 
 
 5. 
 
 l< 
 
 II 
 
 6. 
 
 c< 
 
 II 
 
 7. 
 
 (( 
 
 II 
 
 8. 
 
 (t 
 
 II 
 
 9. 
 
 tt 
 
 II 
 
 10. 
 
 it 
 
 II 
 
 11. 
 
 i( 
 
 II 
 
 12. 
 
 << 
 
 II 
 
 13. 
 
 « 
 
 II 
 
 14. 
 
 II 
 
 II 
 
 15. 
 
 <l 
 
 11 
 
 16. 
 
 II 
 
 i> 
 
 17. 
 
 II 
 
 II 
 
 18. 
 
 II 
 
 II 
 
 19. 
 
 II 
 
 II 
 
 20. 
 
 II 
 
 II 
 
 21. 
 
 II 
 
 II 
 
 23. 
 
 II 
 
 II 
 
 24. 
 
 II 
 
 II 
 
 25. 
 
 Order XVI., 
 
 Rule 1. 
 
 II 
 
 ic 
 
 2. 
 
 II 
 
 i( 
 
 3. 
 
 i> 
 
 c< 
 
 4. 
 
 II 
 
 « 
 
 7. 
 
 XXIV 
 
 « 
 
 4. 
 
 Order XVII. 
 
 , Rule 1 (a) 
 
 
 " 1(0. 
 
 
 
 ' Krf) 
 
 
 " 2(6). 
 
 Order XVII] 
 
 ., Rule 1. 
 
 II 
 
 
 " 2. 
 
 II 
 
 
 " 3. 
 
 i> 
 
 
 " 4. 
 
 II 
 
 
 " 5. 
 
 II 
 
 
 " 6. 
 
 II 
 
 
 " 7. 
 
 II 
 
 
 " 8, 
 
 II 
 
 
 " 9. 
 
 <i 
 
 
 "10. 
 
 0. XXIV.,- 3. 
 
6 
 
 COMPARATIVE TABLE. 
 
 Il 
 
 Rules Supreme Court, 1875. 
 
 Order XXIII., Rule I 
 
 Order XXIV. , Rule 1. O. X VI. , R. 2 . 
 
 '• " 2 
 
 " "3 
 
 Order XXV '.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 Order XXVI 
 
 Order XXVII., Rule 1 
 
 « «' 2 . 
 
 " " 3 
 
 It ■< 4 
 
 " 5.' ' a XVL,R.6. 
 "6. 0.XVI.,R.6. 
 
 " '• 8.1....'.'.'.'.\\'.'.\\ 
 
 " " 9 
 
 " y)'.'.'.'.'.'.'.'.':'.'.'.'..'.'. 
 
 Order XXVIII., Rule 1 
 
 " •< 2 
 
 " '« 5.'.'.'.'. 
 
 " 6 
 
 << << J 
 
 " " s'.'.'.'.'.'.'.'..'." " 
 
 " "9 
 
 •' " lo'.'.'.'.'.".'.'.'.'.'..'. 
 
 " 11 
 
 " 12 
 
 " " 13 
 
 Order XXIX., Rule 1 
 
 " 2 
 
 *' 3 
 
 " «« 4 
 
 " ^V.'.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 " " 6 
 
 " 7 
 
 " " 8 
 
 " lO.'.'.'.'.'.'.'.'.]'.'.'.'.'.'. 
 
 " 11 
 
 " 12 
 
 " 13 
 
 " 14 
 
 Order XXX., Rule 1 
 
 " " 2 
 
 " 3 '.'.'.'. 
 
 " i« 4 
 
 Order XXXI., Rule 2. .'.'.'.'.'.['.'.'. .'.'.'.'. 
 
 " 11 
 
 " " 12 
 
 •• 13 
 
 •' 14 
 
 " 15 
 
 " " 16 
 
 " 17 
 
 " 18 
 
 " 19 
 
 " '« 20 
 
 " " 21 
 
 '• «' 22 
 
 " " 23 
 Order XXXIL, Rule i.'.'.'.'.'.'.'.'.W'.'.'.'. 
 
 '« «« 2 
 
 " " 3........'.'..'.'.'.'. 
 
 <( (( 4 
 
 Order XXXIII '.'.'.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 Order XXXIV., Rule 1 
 
 Ontario Act and Orders. 
 
 Order XIX., Rule 1 (c). 
 
 Order XX., Rule 1. O. XXIII— 2. 
 
 " 2. 
 
 "3. 0. XXIII-6. 
 O. XXI. ; O. XXIII. , R. 2. 
 Order XXII. 
 Order XXIII., Rule 1. 
 " " 2. 
 
 K 
 
 " 3. 
 
 « 
 
 " 4. 
 
 l< 
 
 " 5. 
 
 <l 
 
 •• 7. 
 
 << 
 
 " 8. 
 
 (( 
 
 " 9. 
 
 <( 
 
 " 10. 
 
 l< 
 
 " 11. 
 
 Order XXIV., 
 
 Rule 1. 
 
 <( 
 
 " 2. 
 
 (i 
 
 " 6. 
 
 «< 
 
 " 7(a) 
 
 << 
 
 " 8. 
 
 i< 
 
 " 9. 
 
 It 
 
 " 10. 
 
 ■< 
 
 " 11. 
 
 i< 
 
 " 12. 
 
 ■< 
 
 " 13. 
 
 ({ 
 
 " 14. 
 
 Order XXV., 
 
 Rule 1. 
 
 (( 
 
 " 2. 
 
 (t 
 
 " 3. 
 
 <i 
 
 " 4. 
 
 « 
 
 " 6. 
 
 (< 
 
 " 6. 
 
 << 
 
 " 7. 
 
 ■( 
 
 •' 8. 
 
 « 
 
 " 9. 
 
 (i 
 
 " 10. 
 
 Order XXI. 
 
 
 Order XXV., 
 
 Rule 11. 
 
 II 
 
 " 12. 
 
 Order XXVI., 
 
 Rule 1. 
 
 u 
 
 " 2. 
 
 l< 
 
 " 3. 
 
 l( 
 
 " 4. 
 
 Order XXVII 
 
 , Rule 2. 
 
 II 
 
 " 3. 
 
 II 
 
 " 4. 
 
 11 
 
 " 10. 
 
 II 
 
 ♦• 11. 
 
 It 
 
 " 13. 
 
 II 
 
 " 14. 
 
 *" 
 
 " 15. 
 
 i< 
 
 " 16. 
 
 li 
 
 " 17. 
 
 i< 
 
 " 18. 
 
 II 
 
 " 19. 
 
 It 
 
 " 20. 
 
 i( 
 
 " 21. 
 
 Order XXVIII.. Rule 1. 
 
 <l 
 
 " 2. 
 
 3. 
 
 Order XXIX., Rule 1. 
 Order XXX,, Rule 1. 
 
COMPARATIVE TABLE. 
 
 Rules Supkkme Court, 1875. 
 Order XXXIY., Rule 1 
 
 " " 2.......... 
 
 " " 3 
 
 i( << 4 
 
 " " 5.......... 
 
 Order XXXV., Rule 2 
 
 » " 3 
 
 " " 5............ 
 
 " " 6 
 
 i( "7 
 
 " " s'.'.'.'.......'.. 
 
 " " 14 
 
 Order XXXVI., Rule 1 
 
 << <( 4 
 
 " *• e'.'.'.'.'..'.'... 
 
 " " s'.'.'.'... '..'.'. 
 
 " " 9 
 
 " " lo'.'.'.'.'.'.'.'.'.'. 
 
 " " 15 
 
 " " 17 
 
 " " 18 
 
 " " 19 
 
 •• " 20 
 
 " " 21 
 
 «• » 23 
 
 " " 24 
 
 « " 30 
 
 " " 31 
 
 " " 32 
 
 " " 33 
 
 " " 34 
 
 Order XXXVII., Rule 1 
 
 « •< 2. 
 
 " " 3 
 
 Order XXXVIII., Rule 1 '.'.'.'.'.'.'.'. 
 1. i< 2 
 
 " " 3 
 
 " "4 
 
 " " 5;;!;;;;! 
 
 " '« 6 
 
 Order XXXIX,, Rule 2 
 
 " " 3 
 
 " 'I 4 
 
 " 5'.'.'.'.'.['.'.".'. 
 Order XL., Rule 1 
 
 " 8'.'.'.'.'.'.'.'.'.'.y." " 
 
 •• 10 ."...;.■.". 
 
 " 11 
 
 Order XLL, Rule 1 
 
 " " 2. 
 
 " 3.'.'.'.'.'.'. 
 
 . " "4 
 
 " C.'.'.'.'.'.'.'. 
 
 '* " 6 
 
 Order XLIL, Rule 1 
 
 "2. 
 
 " " s.'.'.'.'.'.'.'.'. 
 
 M "4. 
 
 Ontario Act and Orders. 
 
 Order XXX., Rule 1 (6). 
 
 t< <( 
 
 1(«). 
 
 << i< 
 
 2. 
 
 i< t( 
 
 3. 
 
 <( ti 
 
 4. 
 
 <i <t 
 
 5. 
 
 Order XLIX., Rule 4. 
 
 <i i< 
 
 5. 
 
 Sec. 76. 
 
 
 Order XLIX., Rule 11. 
 
 << <( 
 
 12. 
 
 << <i 
 
 13 (e). 
 
 
 13 ie). 
 
 <( K 
 
 13 id). 
 
 Order XXXL, Rule 1. 
 
 '« K 
 
 2. 
 
 i( l< 
 
 3. 
 
 << <( 
 
 4. 
 
 << l< 
 
 5. 
 
 <( « 
 
 6. 
 
 <( II 
 
 7. 
 
 11 II 
 
 8. 
 
 <l <l 
 
 9. 
 
 II II 
 
 15. 
 
 II II 
 
 16. 
 
 II II 
 
 17. 
 
 II II 
 
 19. 
 
 II II 
 
 21. 
 
 II l< 
 
 22. 
 
 It II 
 
 23. 
 
 II II 
 
 24. 
 
 ■ 1 II 
 
 25. 
 
 II II 
 
 26. 
 
 II 11 
 
 27. 
 
 Order XXXII., 
 
 Rule 1. 
 
 II 
 
 " 2. 
 
 II 
 
 •' 3. 
 
 II 
 
 " 4. 
 
 Order XXXIV., 
 
 Rule .1. 
 
 
 " 2. 
 
 i( 
 
 •♦ 3. 
 
 i< 
 
 " 4. 
 
 II 
 
 " 5. 
 
 11 
 
 " 6. 
 
 Order XXXV., 
 
 Rule 4. 
 
 II 
 
 " 5. 
 
 II 
 
 " 6. 
 
 II 
 
 " 7. 
 
 Order XXXVI., 
 
 Rule 1. 
 
 II 
 
 " 4. 
 
 II 
 
 " 5. 
 
 << 
 
 " 6. 
 
 11 
 
 " 7. 
 
 II 
 
 " 8. 
 
 Order XXXVII., 
 
 Rule 1. 
 
 II 
 
 " 2. 
 
 11 
 
 " 3. 
 
 << 
 
 " 4. 
 
 II 
 
 " 5. 
 
 II 
 
 " 6. 
 
 Order XXXVIII. 
 
 , Rule 1. 
 
 II 
 
 " 2. 
 
 II 
 
 " 3. 
 
 II 
 
 " 4. 
 
8 
 
 COMPARATIVE TABLE. 
 
 f P ! ■ 
 
 I; I!" 
 
 i' '; 
 
 RrLKSj Supreme Coubt, 1875. 
 
 t< 
 
 6 
 
 i< 
 
 7 
 
 t< 
 
 8 
 
 << 
 
 " 10 
 
 li 
 
 " 11 
 
 <t 
 
 " 12 
 
 <l 
 
 " 13 
 
 (C 
 
 " 14 
 
 <i 
 
 " 15 
 
 Order XLII. 
 
 , Rule 16 
 
 (1 
 
 " 17 
 
 i< 
 
 " 18 
 
 <i 
 
 " 19 
 
 <i 
 
 " 20 
 
 <t 
 
 " 21 
 
 << 
 
 " 22 
 
 ii 
 
 " 23 
 
 K 
 
 " 24 
 
 Order XLII] 
 
 ..Rulel 
 
 « 
 
 " 2 
 
 Order XLIV. 
 
 .Rulel 
 
 a 
 
 " 2 
 
 Order XLV., 
 
 Rule 2 
 
 « ' 
 
 " 2 
 
 II 
 
 " 3 
 
 11 
 
 " 4 
 
 II 
 
 " 5 
 
 II 
 
 " 6 
 
 II 
 
 " 7 
 
 It 
 
 " 8 
 
 <i 
 
 " 9 
 
 <( 
 
 " 10 
 
 Order XLVIIL. Rule 1 
 
 (( 
 
 " 2 
 
 Order XLIX 
 
 
 Order L., Rule 1 
 
 <( i< 
 
 3 
 
 . 11 < 
 
 4 
 
 II 1 
 
 5 
 
 II < 
 
 6 
 
 II < 
 
 7 
 
 Order LL, Rule 2 
 
 <« 
 
 " 4 ^ 
 
 Order LIL, Rule 1 
 
 (i 
 
 " 2 
 
 i< 
 
 " 3 
 
 K 
 
 " 4 
 
 <i 
 
 " 5 
 
 l( 
 
 " fi 
 
 Order Lin.,R"lfll 
 
 «« 
 
 » 2 
 
 u 
 
 " 3 
 
 t( 
 
 " 4 
 
 l< 
 
 " 5 
 
 i< 
 
 " 6 
 
 <l 
 
 " 7 
 
 l< 
 
 " 8 
 
 Order LIV., 
 
 Rule 1 
 
 <i 
 
 " 2 
 
 II 
 
 " 6 
 
 II 
 
 " 6 
 
 II 
 
 «« J 
 
 It 
 
 " 5 
 
 Ontario Act and Orders. 
 
 Order XXXVIII., Rule 5. 
 
 " 6. 
 li 
 
 7. 
 
 8(c) 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 14(6). 
 
 II 
 II 
 II 
 II 
 «i 
 « 
 
 K 
 1< 
 (< 
 (( 
 (I 
 (( 
 
 Order XXXVIII., Rule 15, 
 " 16. 
 
 18. 
 19. 
 20. 
 21. 
 22. 
 23 
 
 Order XXXIX., Rule L 
 " "2 
 
 Order XL., Rule 1. 
 " "2 
 
 Order XLI., Rule 1. 
 " 5. 
 " 6. 
 " 7. 
 " 8. 
 " " 9. 
 
 " *' 10. 
 
 " 11. 
 
 " " 13. 
 
 Order XLII., Rule 1. 
 
 " " 2 
 
 Order XLIIL, 
 Order XLIV., Rule 1. 
 
 " " 2. 
 
 II 
 
 It 
 11 
 
 4. 
 j. 
 
 II II rr 
 
 Order XLV., Rule 1. ' 
 II "4. 
 
 Order XLVL, Rulel. 
 
 " 2. 
 
 " " 3. 
 
 II II 4_ 
 
 " " 5. 
 
 ic "7 
 
 Order XLVIL, Rulel." 
 
 " 2. 
 
 " 3. 
 
 II "4. 
 
 " " 5! 
 
 " " 6. 
 
 I. 7 
 
 II II Q . 
 
 Order XLVIIL, Rule 1. 
 Order XLIX., 6 (a). 
 Order XLVIIL, Rule 3. 
 Order XLIX., " 12. 
 
 " 13 (0). 
 " " 13(c). 
 
COMPARATIVE TABLE. 
 
 Rules Supreme Court, 1875. 
 
 Order LIV., Rule 6 
 
 " 5 
 
 Order LV., Rule 1 
 
 Order LVI., Rule 1 
 
 " '< 2 
 
 " " 8 
 
 Order LVII., Rule 1.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 " " 2 
 
 " " 3 
 
 " " 5^'^'.'.'.'.'.'.'.''.'.'.'.'.'.'. 
 
 " 6 
 
 Order LVIII., Rule 1 
 
 Order LIX 
 
 Order LX., Rule 1 
 
 Order LXL, Rule 1 
 
 " '• 6 
 
 Order LXII '/^'^\V.'.'.'.'.'.'.'.'.'.'.'. 
 
 Rules, Sup. Ct., Aug., 1875. 
 
 (See Order L., Rule 20.) 
 
 Order XV 
 
 Costs, XVI 
 
 " XVII 
 
 " XVIII 
 
 " XIX 
 
 " XXI 
 
 " XXIII 
 
 " XXIV 
 
 " XXV 
 
 " XXVI 
 
 " XXVIII 
 
 " XXX 
 
 " XXXI 
 
 " XXXII 
 
 " XXXIII 
 Notice of 2nd Nov.", 'l875," W." N.V 1876, 
 
 pt. II., 469 
 
 Notice of 3rd Nov., 1875, W. N., 1875, 
 pt. II., 468 
 
 Rules Sup. Ct., Dec, 1875. 
 
 Rule IX 
 
 " XIV '.'.'..'.'.'.'.'.'. 
 
 Rules Sup. Ct., Feb., 1876. 
 
 Rule II 
 
 " III 
 
 " IV 
 
 " V 
 
 " VI 
 
 " VII 
 
 " IX '.'.'.'.'.'.'.'.'.['.'.'. 
 
 Rules Sup. Ct., Junk, 1876. 
 RuleV 
 
 " VI.... 
 
 " VII 
 
 Ontario Act and Orders. 
 
 Order XLIX., Rule 13 (c). 
 " 13(c). 
 Order L., Rule 1. 
 Order LI., Rule 1. 
 " " 2. 
 
 " " 3 
 
 Order LIL, Rule 1. 
 " 2. 
 
 " 7. 
 
 " " 8. 
 
 (I It u 
 
 Order LIV., Rule 2. 
 
 Order LV., Rule 1. 
 
 (Act, sec. 58). 
 
 Order LVII., Rule 1 (o). 
 « .. 3 
 
 " " 4. 
 
 Order LVIIL, 
 
 ill; 
 
 Order XXVIl 
 
 .. Rule 12. 
 
 Order L. 
 
 Rule 6. 
 
 
 
 7. 
 
 
 
 8 ; OrderXXIL,R.l(e) 
 
 
 
 9. 
 
 
 
 10. 
 
 
 
 11. 
 
 
 
 13. 
 
 
 
 14. 
 
 
 
 15. 
 
 
 
 18. 
 
 
 
 20. 
 
 
 
 21. 
 
 
 
 22. 
 
 
 
 23. 
 
 Order LXII., 
 
 Rule 1. 
 
 Order L. 
 
 Rule 2 (a), 12 (6). 
 
 Order XIX., Rule 2. 
 Order XXXI., Rule 9. 
 
 Order III., Rule 1. 
 
 " " 2. 
 
 " " 3 
 
 Order VIIL, Rule *2. 
 Order II., Rule 6. 
 Older L., Rule 2. 
 Order LVII., Rule 2. 
 
 Order VII.; Order VIII., RiUe 9. 
 Order VIIL, Rule 9. 
 Order XII., Rule 11. 
 
10 
 
 COMPARATIVE TABLE. 
 
 "i 
 
 \\''i 
 
 Hi 
 il! 
 
 RuLK8 Sup. Ct, June, 1876. 
 
 Order VIII 
 
 " X 
 
 " XII 
 
 " XIII 
 
 " XIV 
 
 " XV 
 
 " XVI 
 
 '• XVII 
 
 " XVIII 
 
 " XIX. 
 
 Rules Sup. Ct. 
 Order III 
 
 , Dec, 1876. 
 
 " V 
 
 " VI 
 
 " VII., Ist part . 
 
 " 2nd part 
 
 " VIII 
 
 
 
 
 Rules Sup. Ct. 
 Order III 
 
 May, 1877. 
 
 Rules Sup. Ct., 
 Order V 
 
 March, 1879. 
 
 " VI 
 
 " VII 
 
 " VIII 
 
 Rules Sup. Ct. 
 Order V 
 
 , Dec, 1879. 
 
 Rules Sup. Ct. 
 Order VI 
 
 Feb., 1880. 
 
 Rules Sup. Ct., 
 Order VI 
 
 Apuil, 1880. 
 
 " VII 
 
 " VIII 
 
 "IX 
 
 " X 
 
 " XI 
 
 " XII 
 
 " XIII 
 
 " XIV 
 
 " XV 
 
 " XVI 
 
 " XVII 
 
 " XVIII 
 
 " XXXII 
 
 " XXXIV 
 
 " XXXV 
 
 •• XXXIX 
 
 " XL! 
 
 " XLII 
 
 " XLIII 
 
 •' XLIV 
 
 " XLV 
 
 " LII 
 
 Ontario Act and Orders. 
 
 Order XII., Rule 13. 
 Order XIX., Rule 3. 
 Order VIII., Rules 1, 3. 
 Order XXXI., Rule 2. 
 See. 63. 
 
 Order XXXVIII., Rule 9. 
 Order XLV., Rule 3. 
 Order XLIX., Rule 8. 
 
 Sec. 44 ; Order XXXI., Rule 20. 
 Order XXV., Rule 1. 
 Order XXV., Rule 3. 
 Order XXXVL, Rule 2. 
 Order XXXVL, Rule 3 (a) 
 Sec. 28, 8ub-8. 2 ; " " ' " 
 
 Order LI v.. Rule 1. 
 
 Order X., Rule 1. 
 
 Order XXXL, Rule 27. 
 Order XXXV., Rule 2, 3. 
 Order XLVL, Rule 8. 
 Order XLVIIL, Rule 3. 
 
 Order XXXVII., Rule 14. 
 
 Order VIII. , Rule 2. 
 
 OrderVIIL,Rule6{a). 
 Order XIL, Rule 2-5. 
 " 26. 
 Order XXX., Rule 1 (a). 
 
 " " 6. 
 
 Sec. 76. 
 Order LIIL, Rule 1. 
 
 " '• 2. 
 
 •• 3. 
 « 4 
 
 " 5. 
 ♦* 6. 
 
 II II 17 
 
 Order XLVL, Rule* 6. 
 Order XLIX., Rule 11 (a). 
 " 11(6). 
 Order XLVIIL, Rule 2. 
 Order L., Rule 3. 
 Order LII., Rule .5. 
 " 6. 
 Order LV,, Rule 2. 
 Sec. 8. 
 Order LIX. 
 
 It 
 
 It 
 
COMPARATIVE TABLE, 
 
 11 
 
 Rules Sup. Cr., April, 1880. 
 
 Order LFV 
 
 " LXV 
 
 FormB., 10(a) 
 
 " H.,31,32 
 
 " •' 22 
 
 " " 30 
 
 Dominion Statutes. 
 
 32 and 33 Vic, cap. 30, sec. 26 
 
 38 " " 11 " 17,40... 
 
 39 " " 36 
 
 42 " " 39, sec. 8 
 
 Ontario Statutes. 
 
 C. S. U. C, cap. 11, sec. 2, 6 
 
 " " 38 "49 
 29 and 30 Vic, cap. 29 '.'.'.'.'.'.'.'.'. 
 
 32 " " 29, sec 17 
 
 86 " " 8 " 52 
 
 37 " " 7 " 5 
 
 40 " " 6 " 9(a).., 
 
 41 " " 8 " 3 
 
 41 " " 8 " 4 
 
 41 " " 8 " 8 
 
 42 " " 19 " 16,17.. 
 
 43 Vic, cap. 3, sec. 64, tiub-s. 14 
 
 43 " " 8 " 21 
 
 43 " " 8 " 23 
 
 43 " " 8 " 24 
 
 43 " " 8 " 26 
 
 Revised Statutes of Ontario. 
 
 P. XIII., (B. N. A. Act), sec 96. . . , 
 
 Cap. 1, sec. 8, sub-s. 16 , 
 
 Cap.7, " 7 
 
 Cap. 11, " 33 •. 
 
 Cap. 16, " 32 and 33 
 
 Cap. 21, " 15^'.'.'.''.'.'.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 Cap. 38, " 3 
 
 u •♦4 
 
 " " &....'.[........'.'.'.'.'.'..'. 
 
 I< <( IT 
 
 It << Q 
 
 " " io^'^'^\'^'.'.'.'.'.'.'.'..'.\\ 
 
 " " 16 
 
 " " 18 
 
 " •• 18, sub-s. 3 
 
 • " 19 
 
 " " 22. 
 
 " '• 26..!!!".!!!'.;!!!"; ""' 
 
 " " 40 !.■ 
 
 " " 45 
 
 '• " 46 
 
 " " 47 
 
 " " 48 
 
 " " 49 
 
 " " 56. 
 
 Ontario Act and Orderpi 
 
 Sec. 87. 
 
 Order LII.. Rule 10. 
 Order XXVIL, Rule 13. 
 Order XXIX., Mle 2 (o). 
 " 3(e). 
 Order XXXIII. 
 
 Sec. 83. 
 " 43. 
 " 83. 
 «' 43. 
 
 Sec. 85. 
 
 " 33. 
 
 " 85. 
 60. 
 9. 
 3, 8ub-8. 7. 
 
 " 60. 
 
 " 54, sub-s. (c). 
 
 " 26; Order XLV., Rule 2 
 Order XXVII., Rule 1. 
 Sec 54, sub-s. (c). 
 
 " 64 " 14. 
 
 " 54 " (c). 
 
 « 70 " 7. 
 
 " 71. 
 
 " 72. 
 
 << 
 It 
 
 i 
 
 Sec 3, sub-s. 4. 
 Order LII., Rule 2. 
 Sec. 88. 
 " 27. 
 Order VI., Rule 2. 
 Sec. 64, sub-s. 14. 
 " 13. 
 
 4. 
 
 3 " 4. 
 
 3 " 7. 
 
 6. 
 
 40 ; Order XLIX., Rule 7. 
 
 4. 
 
 36. 
 
 13. 
 
 32. 
 
 64, 8ub-s. (c). 
 
 14. 
 
 38. 
 Order XLIV., Rule 3. 
 
 Sec 39. 
 
 <i 
 
 <( 
 <i 
 
 Sec. 38 and 43. 
 " 54, sub-B. 5. 
 
 Sec 
 
 << 
 <i 
 (I 
 
 K 
 (< 
 

 12 
 
 COMPARATIVE TABLE. 
 
 Revised Statutes op Ontario. 
 
 Cap. 39, sec. 4 
 
 " " 8 
 
 " " 9 f 
 
 " " 11 
 
 " " 12 
 
 " " 20 , 
 
 , " " 21 
 
 ' '« "22 
 
 " " 23 ..'.'.'.'.. .'.'.'.'.'.'.'.'.'..'. 
 
 " " 24 
 
 " " 25 '.'.'.'.'.. .'.'.'.'.'.'.'.'.['.v. 
 
 " " 26 
 
 «' *' 27 
 
 " '• 2% '.'..'.'.'.'.'.'.'.'.'.." ".". 
 
 " "29 
 
 " " 30 : 
 
 " " 31 
 
 " " 32.... 
 
 " " 44 
 
 Cap. 40, aeo. 3 
 
 " " 5 
 
 << <( IT 
 
 " " 8.'.'.'.'.'.'.'.'.'.'.'.'.'.'..'.'. 
 
 (( « Q 
 
 '• " io'.'.'.\'.'..'.'.\' .'.'.'.'.'.. 
 " 11 
 
 " " 12 
 
 " " 13 
 
 " " 14 
 
 " 16 
 
 " " 23 
 
 , " " 24 
 
 " 25 
 
 " «' 26 
 
 " " 27. 
 
 " " 28.....' '..'..... 
 
 " " 29 
 
 " 31 
 
 " " 32 
 
 " " 39 
 
 " 65 
 
 " " 70 
 
 " 85 
 
 " " 86 
 
 " " 87 
 
 *' " 95 
 
 " 97 
 
 Cap. 41, sec. 1 
 
 " " 2-10 
 
 " " 11 
 
 " " 12 
 
 Cap. 42, sec. 5 
 
 " " 55 
 
 Cap. 43, " 14 
 
 Cap. 47, " 6 
 
 Cap. 49, " 3 
 
 «« «« 4 
 
 " " bV.'.'.'.'.'.'.'.'.'.'.'.'.'. '. 
 
 « << ^ 
 
 " " 8\'V//.'.'.'.'.'.'.'.'.'.'.'.'. 
 
 " " 17 
 
 " " 19 
 
 Ontario Act and Obdsbs. 
 
 Order LVIII. 
 Sec. 3. Bub-B. 4. 
 
 " 5. 
 Order LVII., Rule 1(a). 
 " 1(6). 
 Sec. 28. 
 
 " sec. 28, sub-s. 3. 
 " " 36. 
 
 Sec. 85. 
 (I 
 
 Sec. 62, 76. 
 
 " 62. 
 
 '* 62. 
 
 " 62. 
 Order III., Rule 11. 
 Sec. 8, 51. 
 
 " 3, sub-8. 4. 
 
 "5. ■ 
 
 " 62. 
 
 " 62. 
 
 '• 62. 
 
 " 58, sub-s. 5. 
 
 " 61. 
 
 " 61, sub-8. 2. 
 
 " 61, 8ub-9. 2. 
 
 " 64, 10; 79, sub-B. 2. 
 
 " 46, 85. 
 
 " 46, 85. 
 
 " 46, 85. 
 
 " 46, 8.5. 
 
 " 85. 
 62, 76. 
 62. 
 
 68, sub-8. 2 and 3. 
 68, 8ub-8. 2 and 3. * 
 
 *' 17 sub-s 8 
 Order IX. , Rd'le i ; Order XIV., Rule 1. 
 Order VI., Rnle 6. 
 Order XXX., Rule 1. 
 Sec. 17. 
 
 Order XV. ; Sec. 17, 20. 
 Order VI., Rule 2. 
 Order L., Rule 2. 
 Sec. 9, 46, 85. 
 
 " 46, 85. 
 
 " 46. 
 
 " 18, 19, 46. 
 Sec. 66., sub-8. 9. 
 
 " 64., Hub-8. 11. 
 Order LIX., Rule 2. 
 Sec. 51. 
 
 " 46. 
 
 " 16 17 45. 
 
 " 17,' 44'; Order XII., Rules 1, 2; 
 
 Order XXIII., Rule 1. 
 Order LV., Rule 2. 
 Order XXIII., Rule 1; Order LV., 
 
 Rule 2. 
 Order XLI., Rule 1. 
 Rule 2. 
 
 II 
 
COMPARATIVE TABLE. 
 
 18 
 
 Bevibed Statutes of Ontario. 
 
 Cap. '49, MC. 21 
 
 » '• 22 
 
 I < < < 23 
 
 " " 24-29!".!.'!'.'.!!!!!!!! 
 
 •• 31 
 
 " " 45, 8ub-B 7 
 
 " " 54 
 
 Cap. 50, sec. 3.... 
 
 " 10 
 
 " 12 
 
 " 16 
 
 " " 17 
 
 " " 19 
 
 " " 20 
 
 " " 21 
 
 " " 22 
 
 ' 23 
 
 " 25 
 
 " " 26 
 
 " " 27 
 
 " " 28 
 
 '• 29 
 
 " 48 
 
 " 49 
 
 •' 50 
 
 " " 51 
 
 " 52 
 
 " " 53 
 
 " 56 
 
 " 60 
 
 " 61 
 
 " 62 
 
 " 64 
 
 " 65 
 
 " " 69 , 
 
 " " 73 ', 
 
 " 83 
 
 " " 84 
 
 " 85 
 
 " 86 
 
 " 89 , 
 
 " 93 
 
 " 94 ■■ 
 
 " 95 , 
 
 " " 100 
 
 " " 101 ;. 
 
 " 106 
 
 " 107 ';; 
 
 " 108, 
 
 " 109 ■" 
 
 " " 110 
 
 " " iii!!!!!!.!!!! 
 
 " 117 ■ ■' 
 
 " 118 ■■ 
 
 " " 120 
 
 " " 121 
 
 " 128 
 
 " 131 
 
 " 133 "■■■' 
 
 " " 148 
 
 Ontario Act and Orders. 
 
 Sec. 17, 26. 
 
 " 26. 
 
 " 17,26. 
 
 " 17,26. 
 
 " 45. 
 
 " 54 8ub-s. id). 
 
 " 54 8ub-8. 5. 
 Order III., Rule 2. 
 Order III.. Rule 10. 
 Order VIII., Rule 1 ; Order XLIX., 
 
 Rule 5. 
 
 Order III., Rule 8 (a). 
 
 " 9(6). 
 << (< ^ 
 
 Order VI., Rule 2.' 
 " " 10. 
 
 •' " 'lO. 
 
 " "2. 
 
 " " 12 (a). 
 
 Order III., Rule 17, 
 Order v.. Rule 1(c). 
 
 " 1 (c), 2. 
 " 1(c). 
 Order II., Rule 4 ; Order VII., Rule 3. 
 " 4 ; Order VII., Rules 
 3,4. 
 Order II., Rule 4; Order VII., Rules 
 
 3 4.') 
 Order' li.. Rule 4; Order VII., Rules 
 
 3, 4, 1 (c). 
 Order II., Rule 4. 
 
 Order IV., Rule 1 (6). 
 
 Order VIII., Rule 12. 
 
 Rules 2, 4, 5. 
 
 " Rules 2, 6. 
 
 Order IX., Rule 4. 
 
 Rules 6, 7. 
 
 Rule .5. 
 
 Order XII. ; Order XII., Rule 15. 
 
 Order XII. 
 
 Order XIII., Rules 1, 2. 
 
 Rules 1, 8. 
 
 " Rules 1, 4. 
 
 Sec. 64, S.-8. 5. 
 
 Order XVII., Rule 1 (a). 
 
 Order XVI., Rule 2. 
 
 Order LII., Rules 7, 8. 
 
 Order XVIII., Rule 1. 
 • I i< ■] 
 
 Order XVI., Rule 3. 
 
 Rules 3, 5. 
 Order XXVI., Pule 1. 
 
 Rules 1, 2, 3. 
 Rulel. 
 " " 4. 
 
 Order XV ., Rule 24 ; 'Order XXI. 
 Order XXIV., Rules 5, 6. 
 Order XXIII., Rule 1. 
 Sec. 67 ; Order LVI., Rule 3. 
 Order XXIV., Rule 2. 
 Sec. 17. 
 " 17. 
 " 76 ; Order LIX., Rule 8. 
 
ill! i 
 
 14 
 
 COMPARATIVE TABLE. 
 
 Revised Statutkh or Ontahio. 
 
 k/np. int, 
 
 II 
 ti 
 II 
 II 
 11 
 
 ti 
 II 
 II 
 II 
 II 
 
 II 
 
 II 
 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 
 II 
 II 
 II 
 It 
 II 
 II 
 II 
 It 
 
 It 
 
 II 
 
 It 
 It 
 II 
 1. 
 It 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 
 sec 
 II 
 
 II 
 
 II 
 
 II 
 
 II 
 
 II 
 
 II 
 
 150 
 
 
 <> 
 
 150,168 
 
 l(ii» 
 
 
 li 
 
 170 
 
 
 It 
 
 171 
 
 
 II 
 
 172-175 
 
 
 II 
 
 181 
 
 
 II 
 
 182 
 
 
 II 
 
 185 
 
 
 II 
 
 189 
 
 
 II 
 
 195 
 
 
 II 
 
 197 
 
 
 II 
 
 211 
 
 
 II 
 
 227 
 
 
 II 
 
 228 
 
 
 11 
 
 229 
 
 
 II 
 II 
 
 230-242 
 
 248 
 
 
 It 
 
 249 
 
 
 ft 
 
 252-258 
 
 
 (1 
 
 254 
 
 
 II 
 
 259 
 
 
 II 
 
 262 
 
 
 II 
 
 270 
 
 
 It 
 
 281 
 
 
 11 
 11 
 
 281,8.-8. 2 
 
 282 
 
 
 II 
 
 284 
 
 
 II 
 
 285 
 
 
 It 
 
 286 
 
 
 If 
 
 289 
 
 
 11 
 
 302 
 
 
 II 
 
 303 
 
 
 II 
 
 304 
 
 
 II 
 
 307 
 
 
 II 
 
 308 
 
 
 II 
 
 309 
 
 
 11 
 
 310 
 
 
 II 
 
 313 
 
 
 II 
 II 
 
 313, 8. -8. 2 
 
 317 
 
 
 II 
 
 320 
 
 
 II 
 
 321 
 
 
 II 
 
 322 
 
 
 II 
 II 
 
 329, etseq 
 
 334 
 
 
 II 
 
 Cap.^ 51, 
 
 Sched. A. Forml. 
 .3 
 
 
 8 
 
 
 II 
 
 10 
 
 
 It 
 
 12 
 
 
 II 
 
 13 
 
 
 II 
 
 14 
 
 
 II 
 
 20 
 
 
 II 
 
 70 
 
 
 Cap. 52 
 Can. 63 
 
 
 
 
 
 
 Ontauio Act and Orders, 
 
 Order XLIX., Rule 8 (a). 
 Order XX\'., Rule 2. 
 Order XXVII., Rule 2. 
 
 " Rules 2, 3, 4. 
 
 " Rules 2, 3, 14. 
 
 " Rules 2, 3; Order 
 
 XXVIII., Rule 2. 
 Order XXVII., Rule 3. 
 Order XXX., Rules 1, 1(c). 
 Rule 1 (a). 
 Rules 1, 1 (c). 
 Sees. 47, 50. 62, 03 ; Order XI., Rvle 1 ; 
 
 Order XXIX., Rule 1. 
 Sec. 47. 
 Sec. 47; Order XI., Rule 1; Order 
 
 XXIX.. Rule 1. 
 Order XXXI., Rule 27. 
 Sec. 50. 
 Orders XLIV., XLIV., Rule 1. 
 
 il II II o 
 
 Order XIJV. 
 
 Order XXXT.,Kule 11. 
 
 Sec. 46 ; Order XXXI., Rule 14. 
 
 Sec. 45. 
 
 Order XXXI., Rule 6. 
 
 Order XXXI., Kule 19. 
 
 Rule 20. 
 
 Order XXIII., Rule 1; Order LV., 
 
 Rule 2. 
 
 Sec. 28. 
 
 Sec. 36. 
 
 Sec. 28. 
 
 Order XXXV., Rule 3. 
 
 " 3, (a). 
 
 Rules 3, 3 (6). 
 
 •I "56 
 
 Order XXXVII., Rule'l; < ,1X, 
 
 Rule 5. 
 
 Order VIII., Rule 1; On. .\;LIX., 
 
 Rule 5. 
 
 Order XLL, Rule 1. 
 
 " " 5. 
 
 " 6. 
 
 "7. 
 II II 8 
 
 II II g 
 
 " 10. 
 
 '• 11. 
 
 " 11. 
 
 " 13. 
 Order XXXVIII., Rule 17. 
 Order II., Rule 1. 
 Order L., Rule 18. 
 Order III., Rule 12. 
 Order XVIII., Rule 1. 
 Order VI., Rule 11. 
 Order VIII., Rule 14. 
 
 " 15. 
 
 .1 17^ 
 
 Order XV., Rule 20. 
 Order IX., Rule 8. 
 Order IX., Rule 9. 
 Sec. 17, 8.-S. 8. 
 Sec. 73. 
 
COMPARATIVE TABLE. 
 
 15 
 
 Effvisro Statutes of Ontario. 
 
 XI., Rvle 1 ; 
 le 1; Order 
 
 :ule]. 
 " 2. 
 
 bule 14. 
 
 Order LV., 
 
 ). 
 (6). 
 
 .IX, 
 a. XLIX., 
 
 Cap. 66, Bee. 7 
 
 " " 11 
 
 " 12 
 
 >i •• 44 
 
 Cap. 67, sec. 8 
 
 " 10,11 
 
 " " 12 
 
 Cap. 68, 
 
 '' 80 
 
 " 108, Bee. 30 
 
 " 110, " 23 
 
 " 116, " 6 
 
 " 125 
 
 " 125, sec. 20 
 
 " 137 
 
 " 149, sec. 43 
 
 " 150, " 60 
 
 " 220, •' 49 
 
 " 220, " 50 
 
 " 220, " 51 
 
 Ontario General Orders, Chancery. 
 G.0.C.14 
 
 
 15. 
 33. 
 34. 
 
 35. 
 
 36. 
 37. 
 38. 
 
 39. 
 
 40.... 
 
 41 
 
 44.... 
 47.... 
 48.... 
 53.... 
 58-61. 
 
 62. 
 66. 
 67. 
 
 68. 
 
 71. 
 
 73. 
 
 11. 
 
 83. 
 
 86. 
 
 88. 
 
 89. 
 
 90. 
 
 93. 
 
 98. 
 
 99. 
 100. 
 102. 
 
 " 113, e< SCO. 
 •' 121 
 
 Ontario Act and Orders. 
 
 Order XLIX., llule 5. 
 Order XXXVIII., Rule 16. 
 
 " " 16. 
 
 « " 12. 
 
 Order II., Rule 1. 
 
 Order XL.. Rule 1. 
 
 Order XXXVIII., Rule 19. 
 
 Ordei I., Rule 4. 
 
 Sec. 73. 
 
 Sec. 17, 8.-8. 2. 
 
 Sec. 62. 
 
 Sec. 17, 8.-B. 6. 
 
 Or.ler Xn.,Rule9. 
 
 Order VL, Rule 3. 
 
 Order II., Rule 1. 
 
 Order VL, Rule 10. 
 (I >( 
 
 Order VI., Rule 6.; Order XI V., Rule 1. 
 
 It'll It Lt 
 
 Sec. 62. 
 
 Order XLIX., Rule .3. 
 
 Sec. 62, Order XLIX., Rule 3; Order 
 
 III., Rule 2. 
 Sec. 02, Order XLIX., Rule 3 ; Order 
 
 VIII., Rule 1. 
 Sec. 62, Order XLIX., Rule .3. 
 Sec. 62, Order XLIX., Rule 3. 
 Sec. 62, Order XLIX., Rule 3, sec. 
 
 62, ; Order IX., Rule 10. 
 Order XLIX., Rule 3 ; Order III., Rule 
 
 2. 
 
 Order in. , Rule 8 (a). 
 It (1 
 
 " Rule 9 (6). 
 Order VL, Rule L 
 Order XXVIII., Rule 4. 
 Order XII., Rule 15. 
 Order XII., Rule 7 ; Order XII., Rules 
 
 10, 14. 
 Order XIL, Rule 5. 
 Order XV., Rule 5. 
 Order LL, Rule 2. 
 Order XIL, Rule 14; Order LIII., 
 
 Rule 1. 
 Order XV., Rule 2(c). 
 Order XLIX., Rule 3. 
 Order III., Rule 10. 
 Order XXIII., Rule 8. 
 Order III. , Rule 12. 
 Order XVIIL, Rule L 
 
 Order II., Rule 4 ; Order VII. 
 
 Order V., Rule 1 (c). 
 II II 
 
 Order VL, Rule 2. 
 
 Order VIL 
 
 Order IL, Rule 4 ; Order VL, Rule 2: 
 
 Order VII. ; Order VIL, Rule 3. 
 Order IX., Rule IL 
 Order XXIV., Rule 7 (a). 
 
1} 
 
 *. Bif 
 
 16 
 
 COMPARATIVE TABLE. 
 
 Ontario General Orders, Chancery. 
 
 G.O.C.123 Order XV., Rule 24, 
 
 124. 
 
 125. 
 
 1.31. 
 
 134. 
 
 135. 
 
 130. 
 
 1J7. 
 
 1^4 
 
 146. 
 
 149. 
 150. 
 151. 
 155. 
 
 1.'56. 
 161. 
 163. 
 167. 
 180. 
 
 184. 
 197. 
 211. 
 214. 
 221. 
 234. 
 258. 
 259. 
 266. 
 268. 
 
 269. 
 270. 
 
 272. 
 273. 
 288. 
 294. 
 
 321. 
 
 337. 
 
 338. 
 
 339. 
 
 340. 
 
 341. 
 
 342. 
 
 343. 
 
 .352. 
 
 372., 
 
 397., 
 
 403.. 
 
 404.. 
 
 408., 
 
 410. 
 411. 
 413. 
 418. 
 432. 
 
 Ontario Ac." and Orders. 
 
 Order XVIII. .Rule 4 ; Order XXVIII. 
 
 Rule 1. 
 Order XV., Rule 22; Order XVIII., 
 
 Rule 4. 
 Order LIII., Rule 5. 
 Order XXVIL, Rule 4. 
 Order XXVII., Rule 10. 
 " 20. 
 " 10. 
 " 18. 
 Order XXIV., Rule 7 (a) ; Order 
 
 XXVIL, Rule 21. 
 Order XVL, Rule 2. 
 Order XX VIIL, Rule 1. 
 Order XV., Rule 2. 
 Order XVL, Rule 2; Order XXIII., 
 
 Rule 5. 
 Order XXVUL, Rule 2. 
 Order XXXI., Rule 2. 
 " " 6. 
 
 Order XXXIL, Rule 1. 
 Order XVIII. , Rule 4; Order XX VIIL, 
 
 Rule 1. 
 O'der XXXVIL, Rule 6. 
 Sec. 62. 
 
 Order XXXIIL, Rule 3. 
 Order XVIII. , Rule 4. 
 Order LIIL, Rule L 
 <^,.;er XXXIL, Rule 3. 
 
 Order XXXIL, Rule 2; Order 
 
 XXXIV.,:iule2. 
 Order XXXIL, Rule 2; Order 
 
 XXXIV., Rule 20. 
 Order XXV., Rule 9 ; Order XXXVI., 
 
 Rules 1, 8. 
 Order XXXVL, Rules 1, 10 (2). 
 Order XXXL, Rule 2. 
 Order XL., Rule 1. 
 
 " Order XLIL, Rule 
 
 1. 
 Order L. , Rules 2, 3. 
 Order XLIV., Order XLIV., Rule 2. 
 Rule 4. 
 "5 
 
 Order XLIV., Rule 6. 
 Rule 8. 
 " "9 
 
 Order LVL, Rule 4. ' 
 " "4 
 
 Order XXXVIL, Rule 13. 
 Order XV., Rule 5. 
 " 6. 
 Order XVIII. , Rule 1 ; Order LIL, 
 
 Rule 8. 
 Order LIL, Rule 6. 
 
 Sec. 18. 
 
 Order XXIV., Rule 7 (a). 
 
 Order iX., Rule 11. 
 
COMPARATIVE TABLE. 
 
 17 
 
 Ontario General Orders, Chancery. 
 
 G.O.C.433 
 
 " 434 
 
 •• 435 
 
 " 436 
 
 " 467-487 
 
 " 495 
 
 '• 517 
 
 " 519 
 
 " 620 
 
 " 531 
 
 " 532 
 
 " 533 
 
 " 534 
 
 " 537 
 
 " 560 
 
 " 589 
 
 " 610 
 
 " 611 
 
 " 612 
 
 " 613 
 
 " 614 
 
 " 616 
 
 " 620 
 
 " 621 
 
 " 625 
 
 " 626 
 
 " 627 
 
 " 633 
 
 " 634 
 
 " 636 
 
 " 638 
 
 " 639 
 
 " 640 
 
 " 641 
 
 " 642 
 
 " 643 
 
 " 644 
 
 " 645 
 
 " 646 
 
 " 647 
 
 " 648 
 
 " 649 
 
 " 650 
 
 Schedule G 
 
 8 
 
 Ontario Act and Orders. 
 
 Order IX., Rule 11. 
 <( << 
 
 Order IX., Rules 10, 11, 
 <i « 
 
 Order I., Rule 3 ; Order III., Rule 6; 
 
 Order XI., Rules 1, 3. 
 Sec. 62. 
 
 Order VI., Rules 4(c), 6, 7. 
 Order IX., Rule 1. 
 Order VI., Rules 4 (c), 5, 7; Order IX., 
 
 Rule 1. 
 
 Sec. 62. 
 
 (t ■ 
 
 " sec. 47, s.-s. 2. 
 
 Order XLIV., Rule 3. 
 
 Sec. 62. 
 (( 
 
 Order VI., Rule 4 (c) ; Order IX., Rule I. 
 Order IX.. Rule 1. 
 Order VI., Rule 4 (c). 
 
 Order XXXVI., Rule 9. 
 
 Order VI., Rule 4 (c). 
 
 Order VII. ; Order VII., Rule 2 (d) : 
 
 Order XVIII., Rule 1. 
 Order VII., Rule 3. 
 Sec. 62. 
 
 (I 
 
 Order LVI., Rules 3, 4. 
 Sec. 62. 
 
 Order I., Rule 3 ; Order III., Rule 6 ; 
 
 Order XI., Rule 3 ; sec. 62. 
 Order I., Rule 3 ; Order III., Rule 6 ; 
 
 Order XI., Rule 3 ; sec. 62 ; Order 
 
 XLIX., Rule 10. 
 Order 1., Rule 3; Order III., Rule 6 
 
 Order XI., Rule 3 ; sec. 02. 
 Order I., Rule 3 ; Order III., Rule 6 
 
 Order XL, Rule 3 ; sec. 62. 
 Order I., Rule 3 ; Order III., Rule 6 
 
 Order XL, Rule 3 ; sec. 69. 
 Order I., Rule 3 ; Order III., Rule 6 
 
 Order XL, Rule 3 ; sec. 62. 
 Order I., Rule 3 ; Order III., Rule 6 
 
 Order XL, Rule 3 ; sec. 62. 
 Order I., Rule 3 ; Order III., Rule 6 . 
 
 Order XL, Rule 3 ; sec. 62 ; Order 
 
 IX., Rule 10. 
 Order L, Rule 3 ; Order III., Rule 6 
 
 Order XL, Eule 3 ; sec. 62. 
 Order L, Rule 3 ; Order III., Rule 6. 
 
 Order XL , Rule 3 ; sec. 62 ; Order 
 
 III., Rule 7. 
 Order I., Rule 3 ; Order III., Rule 6 ; 
 
 Order XL, Rule 3 ; sec. 61 ; Order 
 
 IX., Rule 10. 
 Order I., Rule 3 ; Order III., Rule 6 ; 
 
 Order XL, Rule 3 ; sec. 62. 
 Order I., Rule 3 ; Order III., Rule C ; 
 
 Order XL, Rule 3 ; sec. 62., 
 Order XXVII. , Rule 10. 
 
 I 
 
18 
 
 COMPARATIVE TABLE. 
 
 JM 
 
 f 
 
 Ontario Genbual Orders, Chancery. 
 
 Court of Appeal Orders, March, 1878, 
 No. 2 
 
 Ontario Keg.-Gen., T.T., 1856. 
 
 No. 
 
 1. 
 2. 
 3. 
 
 11. 
 
 13. 
 
 14. 
 
 15. 
 
 21. 
 
 22. 
 
 23, 
 
 24. 
 
 46. 
 
 55. 
 
 93. 
 109. 
 110. 
 111. 
 112. 
 113. 
 135. 
 138. 
 159. 
 
 Reg. Gkn., Hilary Term, 1870, Ont. 
 
 Eeg. Gen.,H. T., 1870 
 
 No. 49.. 
 Keg.-Gen., 2l8t May, 1877 
 
 Ontario Act and Orders. 
 
 Order L., Rule 3. 
 
 Order VIII., Rule 7. 
 " 10. 
 " " 11. 
 
 Order XXVI., Rules 1, 3. 
 
 Rule 1. 
 
 Order XXIV., Rule 8. 
 
 " " 8 
 
 Order XV., Rule 21. ' 
 
 Order XVI., Rule 3. 
 
 Order XIX., Rules i (c), 3. 
 Order LII., Rule 2. 
 Order XXXVIII., Rules 10, 13. 
 Order VIII., Rule 16. 
 Order LIIL, Rule 2. 
 " 8. 
 " " 5. 
 
 " 1. 
 " 6. 
 Rule 6. 
 Rule 9 (b). 
 
 Order LII 
 Order III. 
 
 Order XXVIJI., Rule 4. 
 
 See Sec. 62. 
 
 Order XLIX., Rules 12, 13 (c). 
 
 Order XXIV., Rule 6. 
 
An Act to consolidate the Superior Courts; establish 
 a uniform system of pleading and practice ; and 
 make further provision for the due Administration 
 of Justice. 
 
 [Assented to Uh March, 1881.] 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1. This Act may be cited as " The Ontario Judicature Act, 
 1881." 
 
 2. This Act, except any provision thereof which is declared 
 to take effect on the passing of this Act, or at any ot^ er speci- 
 fied date, shall commence and come into operation on the 22nJ 
 day of Auo-ust, 1881. 
 
 See Imp. Act of 1873, s. 2. 
 
 The authority of County Court Juiiges as to Chambers matters dates from the 
 1st day of January, 1882, O. XLIX., K. 8. 
 
 PART I. 
 
 Constitution of Supreme Court. 
 
 3. From and after the time appointed for the commencement 
 of this Act, the several Courts hereinafter mentioned (that is 
 to say) the Court of Appeal, the Court of Queen's Bench, the 
 Court of Chancery, and the Court of Common Pleas, shall be 
 united and consolidated together, and shall constitute, under 
 and subject to the provisions of this Act, one Supreme Court 
 of Judicature for Ontario. 
 
 See Imp. Act of 1873, s. 3. 
 
 The complete consolidation which is intended is further shown by sub-sec. 5 of 
 this section, and sections 4, 7, and 9. 
 
 (2) The Supreme Court shall consist of two permanent divi- 
 sions. The said Courts of Queen's Bench, Chancery and 
 Common Pleas shall constitute one of such divisions, 
 
m 
 
 ■' ''Is 
 
 n 
 
 so JUDICATUBE ACT. 
 
 and shall be called " The High Court of Justice for 
 Ontario." The said Court of Appeal shall constitute 
 the other division, and shall be called " The Court 
 of Appeal for Ontario." 
 
 See Imp. Act of 18|73, s. 4. 
 
 (3) The Court of Queen's Bench shall thereafter be called 
 
 the Queen's Bench Division of the High Court ; the 
 Court of Chancery shall be called the Chancery 
 Division thereof; and the Court of Common Pleas 
 shall be called the Common Pleas Division thereof ; 
 the Judges of the said three Courts or Divisions shall 
 be called Justices of the High Court. 
 
 See Imp. Act of 1873, s. 31 ; Imp. Act of 1877, s. 4. 
 
 (4) The persons hereafter appointed to fill the places of the 
 
 Chief Justice of the Queen's Bench, the Chancellor of 
 Ontario, and the Chief Justice of the Common Pleas, 
 and their successors respectively, are to be appointed 
 by the authority mentioned in the British North 
 America Act, and with the same respective titles 
 as heretofore. 
 
 See Imp. Act of 1873, s. 5; B. N. A. Act, s. 96 ; R. S. O., c. 38, s. 4 ; c. 39, s. 
 8; c. 40, s. 5. The British North America Act (Imp. Act, 30 and 31 Vic, c. 3), 
 sec. 96, provides for the appointment of the Superior Court Judges in each Province 
 by the Governor-General. Only barristers of ten years' standing at the Bar of 
 Ontario are eligible for appointment as Judges of the Courts of Queen's Bench, 
 Chancery, and Common Pleas, R. S. O., c. 40, s. 5. The Judges of the Court of 
 Appeal may be selected from the Judges for the time being, or retired Judges of 
 the Courts of Queen's Bench, Chancery, or Common Pleas, or from such barristers 
 as are eligible to be appointed Judges of these Courts, R. S. O., c. 38, s. 4. 
 
 (5) Save as in this Act is otherwise expressly provided, all 
 
 the Judges hereinbefore mentioned, and their suc- 
 cessors, shall have in all respects equal power, 
 authority, and jurisdiction. 
 
 See Imp. Act of 1873, s. 5. 
 
 (6) The Chief Justice of the Queen's Bench shall be the 
 
 President of the Queen's Bench Division, the Chan- 
 cellor shall be the President of the Chaneeiy Divi- 
 sion, and the Chief Justice of tlie Common Pleas 
 shall be the President of the Common Pleas Division. 
 
 See Imp. Act of 1873, s. 31. 
 
 (7) Such one of the said three Judges as at the time of the 
 
 passing of this Act may be entitled to precedence over 
 
« '"i 
 
 CONSTITUTION OF COURT. 
 
 n 
 
 the other two, shall be the first President of the High 
 Court ; and on his ceasing to be President, the Pre- 
 sident of the said High Court shall be that one of the 
 Presidents of the Queen's Bench, Chancery and Com- 
 mon Pleas Divisions, who, for the time being, is first 
 in order of seniority. 
 
 See Imp. Act of 1873, 8. 5; Imp. Act of 1875, s. 6; R. S. 0., c. 38, s. 6; 37 Vic, 
 c. 7, 8. 5. 
 
 The order of precedence among the Judges of the different Courts is regulated 
 by R. S. 0., c. 38, s, 6. 
 
 (8) Upon any vacancy happening among the Judges, the 
 
 Judge appointed to fill such vacancy is (subject to 
 the provisions of this Act, and to any Rules of 
 Court which may be made pursuant thereto) to be- 
 come and be a member of the same Division to which 
 the Judge whose place has become vacant belonged. 
 
 See Imp. Act of 1873, s. 31. 
 
 (9) Nothing in this Act shall prevent, or shall be con- 
 
 strued as intended to prevent, the transfer of any 
 Judge of any of the said Divisions from one to 
 another of the said Divisions. 
 
 See Imp. Act of 1873, s. 31. 
 
 The following table shews at a glance the effect of the preceding sections as to 
 consolidation : 
 
 Thb Supreme Cocbt of Judicature for Ontario. 
 
 Division 2. 
 The Court of Appeal for Ontario. 
 
 Judges to be called ' 'Justices of Appeal. " 
 
 Division 1. 
 
 The High Court of Justice for Ontario : 
 
 1. The Queen's Bench Division of the 
 High Court of Justice for Ontario. 
 
 2. The Chancery Division of the High 
 Court of Justice for Ontario. 
 
 3. The Common Pleas Division of the 
 High Court of Justice for Ontario. 
 
 Judges to be called "Justices of the 
 High Court." 
 
 It is unfortunate that there should be two distinct Courts with names so much 
 alike as "The Supreme Court of Justice for Ontario," and "The Supreme Court 
 of Canada." To distinguish between them the whole title of each will have to be 
 used. 
 
 4. The Court of Appeal for Ontario, at present existing, is 
 continued, under that name, and shall, as heretofore, consist 
 of a Chief Justice, to be called the Chief Justice of Ontario, 
 and three other Judges, to be called Justices of Appeal, 
 as in the Act respecting the Court of Appeal, (R. S. O. cap. 38,) 
 mentioned; and the said Judges of the Courts of Queen's 
 
 V 
 
22 
 
 JUDICATUBS AOT. 
 
 I * 
 
 Bench, Chancery and Common Pleas, and their successors the 
 
 Justices of the High Court, shall be ex officio Judges of the 
 
 Court of Appeal, for the same purposes and wiih the same 
 
 duties and powers as by the said Act is provided with respect 
 
 to the Judges of the Courts of Queen's Bench, Chi^ncery, and 
 
 Common Pleas. 
 
 See Imp. Act of 1875, s. 4; R. S. 0.,c. 38, ss. 3, 10. 
 
 "Existing" means existing at the time appointed for the commencement of this 
 Act, see sec. 91. 
 
 The Judges of the Courts of Queen's Bench, Chancery, and Common Pleas, are 
 ex officio Judges of the Court of Appeal for the following purposes : in case of there 
 being a vacancy in the Court of Appeal, or in case from illness or some other cause 
 one or more of the Judges of the said Court is or are not present at some sitting of 
 the Court, or in case one or more of the said Judges is or are under some legal dis- 
 qualification to hear an appeal, the Judges of the Courts of Queen's Bench, Chan- 
 cery, and Common Pleas shall choose from amongst their number a Judge, or at 
 many Judges as necessary, to supply, for the time, the place or places vacant, or 
 the place or places of the Judge or Judges of the Court of Appeal so absent or dis- 
 qualiiied ; and the Judges so chosen aad acting shall have authority to continue to 
 near appeals partly heard before them, and to give judgment in all appeals heard 
 before them ; notwithstanding that such vacancy may in the meantime have been 
 filled up, or that the Judge who was absent may have returned to his duties, R. 
 S. O., c. 38, 8. 10. A Judge whose judgment is appealed against, or who took 
 part in the trial at Nisi Prius, or in the Court below, cannot sit on the proceedings 
 in the Court of Appeal. Ibid, s. 13. As to disqualification of Judges by reason 
 of interest, see Boulton v. The Church Society, 15 Gr. 450 ; Dimes v. Grand Junc- 
 tion Canal Company, 3 H, L. 759. 
 
 5. The oath to be taken by the Judges to be hereafter 
 appointed shall be the following: — "I do solemnly and sin- 
 cerely promise and swear, that I will duly and faithfully, and 
 to the best of my skill and knowledge, execute the powers and 
 trusts reposed in me as ; so help me God." 
 
 The oath is to be administered to the Chief Justices and 
 
 the Chancellor by the Lieutenant-Governor in Council, and to 
 
 the Justices of the High Court, other than the Chief Justices, 
 
 in presence of the President of the High Court; and to the 
 
 Justices of the Court of Appeal in open Court by the Chief 
 
 Justice of Ontario, unless the Lieutenant-Governor in any of 
 
 such cases shall otherwise direct. 
 
 See R. S. 0., c. 38, s. 7; c. 39, s. 9; c. 40, s. 7; Imp. Act, 31 and 32 Vic, c. 72; 
 Imp. Act of 1873, s. 9; Imp. Act of 1875, s. 5. 
 
 6. Every existing Judge is, as to all matters within the 
 legislative authority of this Province, to remain in the same con- 
 dition as if this Act had not passed ; and, subject to the provi- 
 sions of this Act, each of the said existing Judges shall be 
 capable of performing and liable to perform all duties which 
 he would have been capable of performing or liable to per- 
 form if this Act had not passed. 
 
 See Imp. Act of 1873, s. 11. 
 
 "Existing" means existing at the time of tiie commencement of this Act, aee- 
 sec. 91. 
 
JURISDICTION OF HIGH COURT. 
 
 23 
 
 7. If, in any case not expressly provided for by this Act, a 
 liability to any duty, or any authority or power, not incident 
 to the administration of justice shall have been imposed or 
 conferred by any statute or law upon the Judges or any 
 Judge of any of the Courts united and consolidated as afore- 
 said, (save as hereinafter mentioned) every Judge of the said 
 Higli Court shall be capable of performing and exercising, 
 and shall be liable to perform and empowered to exercise 
 every such duty, authority and power, in the same manner as 
 if this Act had not passed, and 0,3 if he had been duly appointed 
 the successor of a Judge liable to such duty, or possessing 
 such authority or power, before the passing of this Act. 
 
 See Imp. Act of 1873, s. 12. 
 
 (2) Any such duty, authority, or power, imposed or con- 
 ferred in any such case as aforesaid, upon the Chief 
 Justice of Ontario, the Chancellor, the Chief Justice 
 of the Queen's Bench, or the Chief Justice of the 
 Common Pleas, shall continue to be performed and ex- 
 ercised by them respectively, and by their respective 
 successors, in the same manner as if this Act had not 
 passed. 
 
 See Imp. Act of 1873, b. 12. 
 
 8, The Lieutenant-Governor in Council may from time to 
 time, determine and declare the seal to be used in the Supreme 
 Court and by which its proceedings shall be certified and authen- 
 ticated; and until there is a seal for the Supreme Court, the 
 seals now in use in and for the existing Courts may be used in 
 and for the respective Divisions of the High Court, and in and 
 for the Court of Appeal respectively. 
 
 See Imp. Act of 1874, s. 61 ; R. Sup. C, April, 1880, R. 45; R. S. O. c. 40, s. 3. 
 This provision that the Lieutenant-Cfovernor may determine and declare the seal 
 to be used in the Supreme Court, agrees with the statutory enactment as to the 
 seal used in the Court of Chancery, R. S. C, c. 40, s. 3. No such enactment 
 existed as to the seals of the Court of Appeal and Common Law Courts. In the 
 office of every Deputy Registrar and Deputy Clerk of the Crown, such seal is to 
 be used as the Lieutenant-Governor shall from time to time direct, see sec. 51. 
 
 PART II. 
 JURISDICTION 
 
 OF HIGH COURT. 
 
 9. The High Court of Justice shall be a Superior Court of 
 Record, and, subject as in this Act mentioned, shall have the 
 
24 
 
 JUDICATURE ACT. 
 
 jurisdiction which, at the commencement of this Act, was 
 vested in, or capable of being exercised by, the Court of 
 Queen's Bench, the Court of Chancery, the Court of Common 
 Pleas, and Courts of Assize, Oyer and Terminer, and Gaol 
 Delivery (whether created by Commission or otherwise), 
 and shall be deemed to be and shall be a continuation of the 
 said Courts respectively (subject to the provisions of this Act) 
 under the name of the High Court of Justice aforesaid. 
 
 See Imp, Act of 1873, s. 16; R. S. O., c. 41, 8. 1, et seq.; 36 Vic. (Ont.), o. 8, ss. 
 52 and 55. 
 
 Court of Record:— "A Court of Record is one whereof the acts and judicial 
 proceedings are enrolled for a perpetual memorial and testimony; which rolls 
 are called the records of the Court, and are of such high and supereminent 
 authority that their truth is not to be called in question. For it is a settled rule 
 and maxim, that nothing shall be averred against a record, nor shall any plea, or 
 even proof, be admitted to the contrary. All Courts of Record are the Courts of 
 the Sovereign, in right of the Crown and Royal diginity, and therefore every Court 
 of Record has authority to fine and imprison for contempt of its authority." — 
 Stephens' Com., Vol. III., p. 269 (Ed. 7). 
 
 The Courts of Queen's Bench and Common Pleas are Courts of Record of origi- 
 nal and co-ordinate jurisdiction, and respectively possess all such powers and 
 authorities as by the law of England are incident to a Superior Court of civil and 
 criminal jurisdiction; and have, use, and exercise all the rights, incidents, and 
 privileges of a Court of Record, and all other rights, incidents, and privileges as 
 fully to all intents and purposes as the same were on the 5th day of December, 
 1859, used, exercised, and enjoyed by any of Her Majesty's Superior Courts of 
 Common Law at Westminster in England, and hold plea in all and all manner of 
 actions, causes and suits as well criminal as civil, real, personal, and mixed, and 
 proceed in such actions, causes, and suits by such process and course as are pro- 
 vided by law, and as shall tend with justice and despatch to determine the same ; 
 and hear and determine all issues of law ; and hear and (with or without a jury, as 
 provided by law) determine all issues of fact that may be joined in any such action, 
 cause, or suit, and give judgment thereon, and award exectition thereof in as full 
 and ample a manner as might, at the said date, be done in Her Majesty's Courts of 
 Queen's Bench, Common Bench, or, in matters which regard the Queen's revenue 
 (including the condemnation of contraband or smuggled gooda), by the Court of 
 Exchequer in England, R. S. O,, c. 39, s. 4. The Chief Justice and Justices of 
 the said Courts respectively, shall have, use, and exercise all the rights, incidents, 
 and privileges of a Judge of a Court of Record, and all other rights, incidents, and 
 privileges as fully to all intents and purposes as the same were prior to the 5th day 
 of December, 1859, used, exercised, and enjoyed by any of the Judges of any of 
 Her Majesty's Superior Courts of Common Law, at Westminster, lb., s. 6. 
 As to the jurisdiction of the Courts of Law and Equity, with reference to the 
 custody of infants, see R. S. O., c. 130 ; Jud. Act, sec. 17, s.-s. 9, and notes thereto. 
 
 The Court of Chancery has no jurisdiction in suits under the value of £10. In 
 Gilbert v. Braithwaite, 3 Ch. Ch. R,416, Strong, V.C., said : "The question involved 
 in this appeal is as to the right of the plaintiff, who claims to have a charge upon land 
 for the sum of $24.79, to have this charge raised by a rule under the decree of this 
 Court in the usual manner in default of payment. On an application made in 
 Chambers by the defendant, the Referee, proceeding on the authority of West- 
 brooke v. Browett (17 Or. 339), dismissed the bill, on the ground that Lord Bacon's 
 ordinance of the 9th January, 1618, applies here, and that this Court will not 
 entertain jurisdiction of a suit, the object of which is to compel tho payment of less 
 than £10. The expression used in the order is, ' shall not take jurisdiction in suits 
 under the value of £10.' This ordinance is still considered as regulating the practice 
 of the English Court of Chancery, and was of course acted upon in England at the 
 time this Court was established by the Act of Upper Canada, 7 Wm. IV., Ch. 2. 
 That Act gives to this Court, in the cases enumerated, ' the like jurisdiction and 
 powers' as were at the time it was passed possessed by the Court of Chancery in 
 England. It seems clear, therefore, that this Court was originally, under the Act 
 of 1837, as much bound by the order referred to as was the English Court of 
 Chancery. " 
 
JURISDICTION OF HIGH COURT. 
 
 26 
 
 As to the jurisdiction of the Court of Chancery, see R. S. 0., c. 40, ss. 34, 36, 
 37, 39, 40, 41, 43, 49, 52, 53, 76, pott; R. S. O., c. 46, ss. 28, 29, 30. 
 
 In the case of lunatics and their property and estates, the jurisdiction of the 
 Court includes that which in England is conferred upon the Lord Chancellor by a 
 Commission from the Crown under the Sign Manual, II. S. O,, c. 40, s. 58. The 
 Sign Manual takes its origin from 17 Edw. II., St. 1, c. 9, by which the rents and 
 profits of the estates of idiots are given to the Crown, As to the extent of his 
 jurisdiction under it, see Shelford on Lunacy, p. 15; and as to the distinction 
 between the jurisdiction exercised by the Lord Chancellor in Chancery and in 
 Lunacy, see Murray v. French, 2 Dick. 555 ; Sherwood v. Sanderson, 19 Ves. 280. 
 Tor a recent and very important case, which illustrates the peculiar nature of the 
 Chancellor's jurisdiction in Lunacy, see Beall v. Smith, L. R. 9 Ch. App. 85, 
 
 (2) The jurisdiction aforesaid shall include (subject to the 
 exceptions hereinafter contained) the jurisdiction 
 which, at the commencement of this Act, was vested 
 in, or capable of being exercised by, all or any one or 
 more of the Judges of the said Courts, respectively, 
 sitting in Court or Chambers, or elsewhere, when 
 acting as Judges or a Judge in pursuance of any 
 statute or law ; and all powers given to any such 
 Court, or to any such Judges or Judge, by any sta- 
 tute ; and also all ministerial powers, duties, and 
 authorities, incident to any and every part of the 
 jurisdiction. 
 
 See Imp. Act of 1873, a. 16. 
 
 10. From and after the commencement of this Act the 
 several jurisdictions vested in the said High Court of Justice, 
 shall cease to be exercised except in the name of the said High 
 Court of Justice as provided by this Act, save as otherwise in 
 this Act provided. 
 
 See Imp. Act of 1873, s, 22. 
 
 11. In all causes, matters, and proceedings whatsoever 
 which shall have been fully heard, and in which judgment 
 shall not have been given, or having been given shall not have 
 been signed, drawn up, passed, entered, or otherwise per- 
 fected, at the time appointed for the commencement of this 
 Act, such judgment, decree, rule, or order may be given or made, 
 signed, drawn up, passed, entered, or perfected respectively, 
 after the commencement of this Act, in the name of the same 
 Court, and by the same judges and officers, and generally in the 
 same manner, in all respects as if this Act had not passed ; and 
 the same shall take effect, to all intents and purposes, as if the 
 same had been duly perfected before the commencement of this 
 Act. 
 
 See Imp, Act of 1873, s, 22, 
 
 ? 
 
 i 
 
 \ 
 
ill 
 
 
 26 
 
 JUDICATURE ACT. 
 
 
 ■ !'i I ' 
 
 ! li 
 
 "May" probably has force of "shall," for if it was intended that there should 
 be an alternative and it should be argued that such decrees, etc., mai/ not be perfected 
 in the mode pointed out ; the answer is that there is no other method. The word 
 seems to bestow a power to complete something that otherwise might be incapable 
 of completion, and the method prescribed is the way in whicli power may be exer- 
 cised. Consider also the use of the word "shall" in sub-sec. 2. See, however, the 
 Interpretation Act, R. S. O. c. 1, s. 7, sub-s. 2. 
 
 As to the practice and procedure in pending cases, see O. LXII. 
 
 The effect of the Act and Order taken together seems to be :^ 
 
 1. As to the name of the Court in which proceedings are to be taken : 
 
 (1) If cause not heard the name of the new Court is to be used. 
 
 (2) If cause heard, decree, etc., is to be issued in the old name. 
 
 {',i) If decree, etc., perfected, further proceedings are to be taken in new 
 name. 
 
 2. As to procedure : 
 
 (1) Queen's Bench and Common Pleas Divisions. 
 
 (a) If no declaration delivered, the new practice is to govern. 
 (6) If declaration delivered, the old practice is to govern up to the 
 close of the pleadings, and thenceforward the new. 
 
 (2) Chancery Division. 
 
 (a) If replication not filed or notice of motion for decree given, 
 old practice up to time at which sucli replication or notice 
 could be filed and served is to govern, and subsequent to thatv 
 period the new practice. 
 
 (6) If replication filed, or notice of motion served, the old practice 
 is to apply up to the conclusion of the suit. 
 
 (3) An order may be made in Chambers making the new practice appli 
 
 cable to any case. 
 
 (2) Every judgment, decree, rule, or order of any Court 
 
 whose jurisdiction is hereby vested in the High Court 
 of Justice, which shall have been duly perfected at any 
 time before the commencement of this Act, may be 
 executed and enforced, and, if necessary, amended or 
 discharged, by the High Court of Justice, in the same 
 manner as if it had been a judgment, decree, rule, or 
 order of the said High Court ; and all causes, matters, 
 and proceedings whatsoever, which shall be pending in 
 any of the Courts whose jurisdiction is so vested as 
 aforesaid at the commencement of this Act, shall be 
 continued and concluded in and before the High Court 
 of Justice ; and the said High Court shall have juris- 
 diction for so continuing and concluding matters 
 criminal as well as civil. 
 See Imp. Act of 1873, s. 22 ; Q. LX., post. 
 
 (3) The said High Court shall have the same jurisdiction 
 
 in relation to all such causes, matters, and proceedings 
 as if the same had been commenced in the High Court 
 of Justice, and continued therein down to the time at 
 which this Act goes into effect ; and, so far as relates 
 to the form and manner of procedure, such causes, 
 matters, and proceedings, or any of them, shall be 
 
JUBISDICTION OF HIGH COURT. 
 
 27 
 
 continued and concluded, in and before the said High 
 Court, as shall be directed by Rules or Orders of 
 Court. 
 
 See Imp. Act of 1873, s. ?2; O. LX., poit. 
 
 113. The jurisdiction of the High Court of Justice and the 
 Court of Appeal, respectively, auall be exercised (so far as re- 
 gards procedure and practice) in the manner provided by this 
 Act, or by such Rules and Orders of Court as may be made 
 pursuant to this Act ; and where no special provision is con- 
 tained in this Act or in any such Rules or Orders of Court 
 with refei'ence thereto, it shall be exercised as nearly as may 
 be in the same manner as the same might have been exercised 
 by the respective existing Courts if this Act had not been 
 passed. 
 
 See Imp. Act of 1873, s. 22. 
 
 Section 52 should be considered with this section. It is as follows : — "Save as 
 by this Act or by any Rules of Court may be otherwise provided, all forms and 
 methods (as nearly as may be) of procedure, which at the commencement of this 
 Act, wera in force in any of the Courts whose jurisdiction is by this Act vested in 
 the said Hi^'h Court, under or by virtue of any law, general order, or rule whatso- 
 ever, and which are not inconsistent with this Act, or with any Rules of Court, 
 may continue to be used and practised, in the said High Court of Justice, in such 
 ana the like cases, and for such and the like purposes, as those to which they would 
 have been applicable in the respective Courts of which the jurisdiction is so vested, 
 if this Act had not passed." 
 
 Ord. 1, after making provision for interpleacler cases, and proceedings in mort- 
 gage, administration, and partition actions, provides as follows:— "Rule 4. — All 
 other proceedings in and applications to the High Court may, subject to these 
 Rules, be taken and made in the same manner as they would havo been taken and 
 made in any Court in which any proceeding or application of the like kind could 
 have been taken or made if the Act had not been passed. In case a defendant is 
 let in to defend under the 11th section of the Revised Statute respecting abscond- 
 ing debtors, the action shall proceed as in ordinary cases under the Act, subject to 
 the provisions in other respects of the said Revised Statute." 
 
 The Judicature Acts do not contain a complete body of practice, but have, in 
 many cases to be supplemented by the former practice. Cooke v. Oceanic Steam 
 Company, W. N. (1875), 220; Laming .. Gee, W. N. (1878), 240. It was said in 
 Bell V. Wilkinson, W. N. (1878), 3 : "Under the new system of pleading introduced 
 by the Judicature Acts the practice of the Common Law Division ought, if possible, 
 to be assimilated to the practice of the Chancery Division, and that the defendant 
 ought therefore to have leave to put in his statement of defence." In Newbiggin-by- 
 the-Sea Gas Company v. Armstrong, W. N. (1879), 203, which was an appeal from 
 an order of Fry, J. , directing that the action should be dismissed, and that the 
 solicitor of the plaintiff company in the action should pay the costs of the company 
 between solicitor and client, on the ground that he had issued the writ in the name 
 of the company without any authority to do so, Jessel, M.R., said that the present 
 order was macfe according to the old practice ot the Court of Chancery in such 
 cases, by which the defendant was not served with notice of the plaintiff's appli- 
 cation, and was left to get his costs from the plaintiff, who had afterwards to get 
 them over from the solicitor. The practice in the Common Law Courts appeared 
 to be a better practice. There the defendant was served with notice of the appli- 
 cation, and the solicitor was ordered to pay the costs of both plaintiff and defend- 
 ant. The question was which practice ought to be followed since the Judicature 
 Acts. That was a matter for the Courts to determine. He had no hesitation in 
 saying, as he had already said at the Rolls Court, though not with the same 
 authority that he now said it in the Court of Appeal, that he considered the Com- 
 
28 
 
 JUDICATURE ACT. 
 
 mon Law practice to he founded on natural justice, and ought to be followed for 
 the future. On the merits of the case he agreed with Mr. Justice Vry. Brett. 
 L.J. said that he was very glad to hear the Master of the Knlls affirm what he had 
 himself often said since the Judicature Act came into operation, that in matters of 
 practice which were left open by the Act, that practice which upon consideration 
 appeared to be best ought to prevail. 
 
 In Bustros v. Bustros, L. R. 14 Ch. D. 849, in which the respective merits of 
 the different forms of affidavits of service formerly used was discussed, the decision 
 seems to have turned upon these merits. Hall, V.C, said: "The difference 
 between the two forms appears to be that the one describes the notice, whilst the 
 other sets out a copy of it. I do not see why an affidavit that a person served a 
 document, a copy of which is set forth in the affidavit, should not be at least as 
 good, if not better, than an affidavit which describes the kind of document which 
 was served. Therefore, without saying that the Chancery form will not do, I shall 
 ado[>t the Common Law form, and state that I consider it sufficient." 
 
 See also sec. 17, sub-s. 10, which provides that "Generally in all matters not here- 
 inbefore particularly mentioned, in which there is any conflict or variance between 
 the rules of Equity and the rules of the Common Law with reference to the same 
 matter the rules of Equity shall prevail." It was held in Grant v. Holland ; Ross 
 V. Grant, L. It. 3 C. V. D. 180 under this sub-sec. that the Enuity practice as to 
 an order changing solicitor should prevail, and in Busti os v. White, L. R. 1 Q. B. 
 D. at p. 426, Jessel, M. R., construed the words as inclusive of practice. 
 
 Jurisdiction of Court of Appeal. 
 
 n 
 
 13. The Court of Appeal shall be a Superior Court of 
 Record, and shall continue to have all the jurisdiction and 
 power which the said Court has heretofore had, save as varied 
 by or under this Act ; and in civil cases shall also have juris- 
 diction and power to hear and determine appeals from any 
 judgment or order, save as hereinafter mentioned, of the High 
 Court of Justice, or of any Judges or Judge thereof, subject 
 to the provisions of this Act, and to such Rules and Orders of 
 Court for regulating the terms and conditions on which 
 appeals shall be allowed, as may be made pursuant to this 
 Act. 
 
 See Imp. Act of 1873, ss. 18, 19 ; R. S. 0., c. 38, s. 18, et seq. 
 
 As to the appellate jurisdiction exercised by the Court, see R. S. 0., c. 38, g. 18. 
 The Court has also original jurisdiction in the trial of election cases under the 
 Election Act, R. S. 0., c. 10, and the Controverted Elections Act, R. S. O., c. 11 : 
 it also exercises all the powers of a Court of first instance as to amendments, and 
 the reception of further evidence upon cjuestions of fact, whether by oral examina- 
 tion of witnesses in Court, by affidavit or deposition taken before some person 
 nominated by the Court, R. S, O., c. 38, s. 22. 
 
 No appeal is permitted without the special leave of the Court or Judge making 
 the order, (1) from an order made by consent of parties, or as to costs only which 
 by law are left to the discretion of the Court (as to such costs see Order L, r. 1), 
 Sec. 32 ; (2) unless the title to real estate, or some interest therein, or the validity 
 of a patent is affected, or the matter in question relates to the taking of an annual 
 or other rent, customary or other duty or fee, or a like demand of a general or 
 public nature affecting future rights, or the matter in controversy exceeds the 
 sum or value of $200, exclusive of costs. Sec. 33 ; (3) or exceeds the sum of $500, 
 exclusive of costs, where there has been no difference of opinion among the Judges 
 of the Divisional Court, or where, on a motion to set aside or discharge a rule, 
 order or decision of a Judge, the Divisional Court does not substantially vary the 
 rule, order, or decision moved against. Sec. 34 ; (4) or from a rule or decision made 
 by a Judge in Chambers, Sec. 36. No appeal lies from an interlocutory order in 
 
JURISDICTION OP COURT OF APPEAL. 
 
 29 
 
 case before the passing of the Act there would have been no relief from a like 
 order by an appeal to the Court of Appeal, Sec. 35. Any doubt as to what 
 decrees, orders, or judgments are interlocutory is to be determined by the Court of 
 Appeal, {Ibid). 
 
 As to requisite notice of appeal, see Sec. 38, 
 
 As to practice upon appeals, see Sec. 39. 
 
 For definition of Court of Record, see note to Seo. 9. 
 
 14. For all the purposes of and incidental to the hearing 
 and determination of any such appeal, and the amendment, 
 execution, and enforcement of any judgment or order made 
 on such appeal, and for the purpose of every other authority 
 given to the Court of Appeal by this Act, the said Court of 
 Appeal shall have all the power, authority, and jurisdiction 
 by this Act vested in the High Court of Justice. 
 
 See Imp. Act of 1873, s. 19, second part ; R. S. C, o. 38, s. 22. 
 
 By R. S, O., c. 38, it was provided as follows : — Sec. 22. The Court of Appeal 
 shall have all the powers and duties as to amendment and otherwise, of the Court 
 or Judge from which or whom the appeal is had, together with full discretionary 
 power to receive further evidence upon questions of fact ; such evidence to be 
 either by oral examination in Court, by affidavit, or by deposition taken before any 
 person whom the Court may nominate. 
 
 Sub-sec. 2. Suoh further evidence may be given, without special leave, upon 
 interlocutory applications, or in any case as to matters which have occurred after 
 the date of the decision from which the appeal is brought. 
 
 _ Sub-eec. 3. Upon appeals from a decree or judgment upon the merits at the 
 trial or hearing of any action or matter, such further evidence (save as aforesaid) 
 shall be admitted on special grounds only, and not without the special leave of the 
 Court. 
 
 Sec. 23. The Court shall have power to dismiss an appeal, or give any judg- 
 ment, and make any decree or order which ought to have been made, and to direct the 
 issue of any process, or the taking of any proceedings in the Court below, or to 
 award restitution and payment of costs, or to make such further or other order as 
 the case may require. 
 
 Sec. 24. The Court shall have power to make such order, as to the whole or 
 any part of the costs of an appeal as may seem just. 
 
 Sec. 25. The powers in the three next preceding sections mentioned may be 
 exercised by the Court, notwithetanding that the appeal is brought against part 
 only of the judgment of the Court below ; and such power may be exercised in 
 favour of all or any of the respondents or parties, although such respondents or 
 parties may not liave appealed from, or complained of the judgment. 
 
 Judgment against one defendant. Practice on appeal by him, plaintiff claiming in the 
 alternative agaimt the other defendant. 
 
 In Purnell v. Great Western R'y Co., L. R. 1 Q. B. D. 636, Jessel, M. R., 
 said : — "The action was brought by the plaintiff against the Great Western Rail- 
 way Company and Harris, for .an injury occasioned by the negligence of persons 
 who were the servants either of the Great Western Railway Company or of Harris. 
 The jury found in effect that at the time of the act they were the servants of the 
 Company, and therefore found a verdict against the Company and in favour of 
 Harris. The Company moved for a new trial before the Queen's Bench Division. 
 The Company was directed by that Division to serve notice of the order upon the 
 defendant Harris. When the order came in for argument, the Court being equally 
 divided in opinion, one Judge being in favour of the Company, and the other in favour 
 of the plaintiif , the order was discharged, and the Counsel for Harris of course was 
 not called upon to argue, the decision being in his favour ; at the same time it may 
 bi observed that the coats of attending on that occasion were refused to Harris. 
 T/hen the case came before this Court on appeal by the Company, the Court, think- 
 
 ,1 
 
 J' 
 
 (I 
 
80 
 
 JUDICATURE ACT. 
 
 ! I ; 
 
 ing there was a serious question to be argued as to whether the persons who were 
 guilty of the negligence wfire the servants of Harris, before proceeding to decide 
 the question between the Company and the plaintiff, directed that notice of the 
 appeal should be given by the plaintiff to Harris, so that he might shew cause why 
 a new trial should not be had, and Harris has appeared under protest, and insisted 
 that the Court of Appeal had no jurisdiction to make that order as to him, tliefour 
 days having elapsed within which, as a matter of course, the order to shew cause 
 why a new trial should not be had should have been moved, and it is insisted that 
 this Court ahould not now entertain the application. 
 
 " I myself have no doubt as to the Jurisdiction of the Court ; I think it is given 
 in the plainest possible terms. But before considering what the Jurisdiction is, it 
 is necessary to consitler what the practice at Common Law was before the Judica- 
 ture Act. It seems to be established by the two casefj to which our attention has 
 been directed, viz.: Doe v. Martin, 13 M. & W. 811; 14 L. J. Ex. 128, and 
 Belcher v. Magnay, Vi M. & W. 815, n ; 14 L. J. Ex. 305, that where a ver- 
 dict has been found in favour of one defendant and against another, and the defend- 
 ant against whom the verdict has been found shall move for a new trial, he was 
 bound to serve a notice of the rule for a new trial on the defendant in whose favour 
 the verdict was returned, and no new trial could be granted unless that proceeding 
 was adopted. That seems to me a very reasonable rule and entirely coincides with 
 the similar practice in the Courts of Equity. 
 
 " That being so in the present case, it appears to me the Railway Company did all 
 they could be reasonably required to do; they obeyed the direction of the Court in 
 serving a notice of the order on Harris, and therefore, it seems to me the onlj' point 
 now to be considered is, whether, Harris being present, a now trial should be 
 granted. 
 
 " It is quite true there is no appeal by the plaintiff, nor is there any cross order 
 moved for; and it is said that if the plaintiff anticiiiated the moving of the Court 
 for a new trial by the defendant, against whom he had obtained a verdict, he should 
 have moved for a cross order against the defendant, in whose favour the verdict 
 had been found. But under the old practice the defendant who moved the rule 
 was bound to serve notice of it on the other defendant. Therefore, as the plaintiff 
 did not desire a new trinl, and in the event of the defendant, who should move for 
 an order obtaining one, the Court had full power to grant a nev/ trial generally." 
 
 See also G. O. Ct. Appeal XVI., which provides that "a cross-appeal shall not 
 under any circumstauces be necessary, but if a respondent intends upon the hearing 
 * contend that the d jcision should be varied he shall, with his reasons against the 
 appeal, give notice of such contention to any parties who may be affected by such 
 contention, and such notice shall con-^isely state the grounds of such contention in 
 the same manner as reasons of appeal are stated," 
 
 l/>. The jurisdiction and power of the Court of Appeal, 
 in respect ot the said matters and all others, shall be and are 
 subject to the provisions of this Act, and to such Rules and 
 Orders of Court for ret,'ilating the terms and conditions on 
 which such appeals shall be allowed, as may be made pursuant 
 to this Act. 
 
 See Imp. Act of 1873, s. 19, first part. 
 
 Rules of Law. 
 
 High 
 
 16. In every civil cause or matter commenced in th 
 Court of Justice, law and equity shall be administered by the 
 High Court of Justice and the Court of Appeal respectively 
 according to the Rules following: 
 
 See Imp. Act of 1873, s. 24; 11. S. O., c. 49, ss. 4, 5. 
 
 The Adminiistration of Justice Act (R. S. O., c. 49) provides (sec. 2), that the 
 Courts of Law and Equity are to be auxilliary to each other. Under sec. 4 a purely 
 
RULES OF LAW. 
 
 31 
 
 money demand might have been sued for at law, though the right was equitable 
 only ; and under sec. 5 the Court or Judge might in any action make such order or 
 decree as equity required. 
 
 The rules set out in this section are to be in force and receive effect in all Courts 
 whatsoever in Ontario, so far as the matters to wliich such rules relate shall be 
 respectively cognizable by such Courts. See sec. 80. 
 
 Mr. Arthur Wilson, treating of the effect of this and the following sub-sections, 
 writes as follows . — "This and the next section undertake to deal with the long- 
 standing anoni ly to wliich so many palliations hud from time to time been applied, 
 but which had mvev been removed— by which different Courts recognized different 
 rights and (huies, applied different remedies to the same case, and in some cases 
 even enforced rules of law actually in conflict with one another. The removal of 
 the last mentioned defect, actual conflict of law, is provided ' )r by Sec. 25. (See 
 Ontario Judicature Act, sec. 17. ) The rest of the matter is ntalt with in the pres- 
 ent section." 
 
 The provisions of this section may be shortly summarized thus : — 
 
 The plaintiff may assert an equitable claim in any Court. 
 
 The plaintiff may obtain an equitable remedy in any C- urt. 
 
 The defendant may raise any eiinitable answer or defence in any Court ; that 
 is to say, anything which would hitherto have been good l>y way of answer, if the 
 suit had been brought in Cliancery (Subs. 3), or would have afforded ground for 
 an injunction, if the action had li';en brought at law, Sub-s. (J. 
 
 The defendant may assert, by way of counter-claim against the plaintiff, any 
 claim, legal or equitable, which he might have raised by a cross suit at law or in 
 equity, Sub-s. 4. 
 
 The defendant may obtain relief relating to or connected with the original sub- 
 ject, if the action ayainst other persons, wl'^ther already parties or not. Ibid. 
 
 All Courts are to recogni/c equitable 'ts incidentally aiipearing. (Sub-s- H.) 
 
 No cause is to be restrained by injiuu ii ; but what would have been groimd 
 for injunction is to be raised liy way of di'ionce, or upon an a])pM"atii).i to stay pro- 
 ceedings (sub-s. 0), or, if more convenient, the action may be transferred to 
 another Division, O. XLV. 
 
 Subject to these provisicms, common law rights a:.d c.u.ies are to be recognized, 
 Sub-a. 7. 
 
 Every Court is to apjily all appropriate remedies, and dispose of all matters in 
 contrjversy, Sub-s. 8. 
 
 For definitions of "plaintiffs," "petitioner," " defendant," see sec. 91. 
 
 P 
 
 (2) If any plaintiff or petitioner claims to be entitled to 
 any equitable estate; or right, or to relie^ upon any 
 equitable ground against any deed, instrument, or con- 
 tract, or against any right, title, or claim v/hatsoever 
 asserted by any defendant or respondent in such cause 
 or matter, or to any relief founded u])on a legal right 
 which heretofore could only have been given by a 
 Court of Equity, the said Courts respectively, and 
 every Judge thereof, shall give to such plaintiff or 
 petitioner such and the same relief as ought to have 
 been given by the Court of Chancery in a suit or pro- 
 ceeding for the same or the like purpose properly insti- 
 tuted before the past'.:g of this Act. 
 
 See Imp. Act of 187.'<, s. 24, sub-s. 1. 
 
 As to the meaning of the words " i)lantiff " and petitioner," see sec. 91. 
 
 Courts of Equity will generally set aside, cancel, and direct to be delivered up, 
 agreements and other instruments, however solemn in their form of operation, wlien 
 they are voidable, and not merely void, under the following circumstances : first, 
 
m 
 
 32 
 
 JUDICATURE ACT. 
 
 illli 
 
 it!' m 
 
 where there is actual fraud in the party defendant, in which the party plaintiff has 
 not participated ; secondly, where there is a constructive fraud against public policy, 
 and the party plaintiff has not participated therein ; thirdly, where there is a fraud 
 against public policy, and the party plaintiff has participated therein, but public 
 policy would be defeated by allowing it to stand ; and lastly, where there is a con- 
 structive fraud by both parties but th^y are not tn pari delicto, Taylor Eq. , Jn ' 
 8. 520, Equity will interefere to restrain an apprehended injury where it is cle;u 
 that the Act intended to be committed would injure or destroy a clear legal right, 
 Herz V. Union Bank of London, 2 Giff. 686 ; Crorapton v. Lee, L. R. 19 Eq. 115. 
 
 (3) If any defendant claims to be entitled to any equit- 
 
 able estate or right; or to relief upon any equitable 
 ground against any deed, instrument or contract, or 
 against any right,title or claim asserted byany plaintifi 
 or petitioner in such cause or matter, or alleges any 
 ground of equitable defence to any claim of the plain- 
 tiff or petitioner in such cause or matter, the said 
 Courts respectively, and every Judge thereof, shall 
 give to every equitable estate, right, or ground of 
 relief so claimed, and to every equitable defence so 
 alleged, such and the same effect, by way of defence 
 against the claim of such plaintiff or petitioner, as the 
 Court of Chancery ought to have given if the same or 
 the like matters had been relied on by way of defence 
 in any suit or proceeding instituted in that Court for 
 the same or the like purpose before the passing of this 
 Act. 
 
 See Imp. Act of 1873, s. 24, sub-sec. 2, 
 
 Wh^i - 1 defendant sets up facts in his statement of defence, which would in the 
 Court of Chancery have entitled him to have au instrument set aside, the Court 
 may, for the purpose of determining tlie action, treat it as set asiae, Mostyn v. 
 West Mostyn Coal and Iron Company, L. R. 1 C. P. D. 145. 
 
 Stipulations for commissions on receipt of rercs, and conversion of arrears of 
 interest into principal, inserted by a solicitor in a mortgage deed, prepared by 
 himself, and insisted upon by him as the condition of any further allowance to his 
 client, will not be allowed in taking the accoiuit between the solicitor, as mortgagee 
 in possession, and his client in a foreclosure suit. Upon a proper case for opening 
 signed accounts, made by a mortgagor by his answer and evidence in a foreclosure 
 suit in issue before the 2nd of November, 1875, the Court has power under the 
 Imp. Act, 1873, s. 24, sub-ss. 2, 3 (Ontario Judicature Act, s. 16, sub-ss. 3, 4), to 
 entertain this equitable defence in the same manner as if a cross bill, or, under the 
 new procedure, a counter-claim had been filed for the purpose, Eyre v. Hughes, 
 L. R. 2 Ch. D. 148. 
 
 (4) The said Courts respectively, and every Judge thereof, 
 
 shall also have power to grant to any defendant in re- 
 spect of any vHjuitable estate or right, or otiier matter 
 of equity, and also in respect of any legal estate, right, 
 or title claimed or asserted hv him, all such relief 
 against &\iy plaintiff or petitioner as such ilefendant 
 shall have properly claimed by his pleadings and as 
 the said Courts respectively, or any Judge thereof, 
 
RULES OF LAW. 
 
 33 
 
 might have grauted in any suit instituted for that pur- 
 pose by the same defendant against the same plaintiff 
 or petitioner; and also all such relief relating to or con- 
 nected with the original subject of the cause or matter, 
 and in like manner claimed against any other person, 
 whether already a party to the same cause or matter 
 or not, who shall have been duly served with notice 
 in writing of such claim pursuant to any Rule of Co^.^Tt 
 or any order of the Court, as might properly have 
 been gj anted against such person if he had been made 
 a defendant to a cause duly instituted by the same 
 defendant for the like purpose ; and every person 
 served with any such notice shall thenceforth be deemed 
 a party to sujh cause or matter, with the same rights 
 in respect of his defence against such claim, as if he 
 had been duly sued in the ordinary way by such defen- 
 dant. 
 
 See Imp. Act of 1873, s. 24, sub-s. 3. 
 
 A short resum^ of tlie law, prior t'. this statute, may be usefuL 
 
 The Common Law Procedure Aut (Con. Stat. U. C, c. 22, s. 124) provided 
 that — "Any defendant or the i)laintiflf in replevin in any cause, who, if judgment 
 were obtained, would be entitled to relief against such judKment on equitable 
 grounds, may plead the facts which entitle him to such relief by way of defence, 
 and the said Courts shall receive such defence hr way of plea ; but such plea must 
 begin with the words, 'for defence on equitalile grounds,' or words to the like 
 efiFect." Under the corresponding English Act, it was held tbat as there were no 
 pleadings in ejectment, the section did not extend to that; form of action, Neave r. 
 Avery, 16 C. B. 328. The section was also confined to such equitable defences as 
 would, if raised by bill in efpiity, have entitled the pleader to an absolute, per- 
 petual and unconditional injuncti(m. It was opti'ial too, with the defendant, 
 whether he would plead his equity or rni.^e it by bill and stay the action by injunc- 
 tion, Kingsford •. Swinford, 5 Jur. N. b. 261. The limitations were reii'oved 
 by " The Adminis tration of Justice Act of 187o." By sec. 3 of that Act " Avy party 
 to an action at law may, by ])lea or any subsenuent pleading, set- up faces which 
 entitle him to relief \q>on eq\iitable ground.s, althougli such facts may not entitle 
 such party to an absjlute, perpetual and imconu:ti<iiial injunction in a Court of 
 Equity, and although ohe opposite party may be entitled to some substantive relief 
 as against the party setting up such facts." By sec. 4, defences upoxi fsquitable 
 grounds may be raised in actions of ejectment, and by sec. 8 — " For the purpose of 
 carrying into effect the objects of this Act, and for causing complete and final 
 justice to be done in all matters in question in any action at law, the Court or a 
 Judge thereof, according to the circumstances v)f the case, may, at the trial or at 
 any other stage of an action or other proceeding, pronounce such judgment, or 
 make such order or decree as the equitable rights of the parties respectively 
 require, and may make such rule or order as to adding third persons as parties to 
 any proceeding, striking out [)arties, or treating parties named plaintiffs as defend- 
 ants, or jiarties named defendants as ))laintiffs, and as to costs, and may direct 
 such inquiries to be made and accounts to be taken, as shall seem reasonable and 
 just^ and may as fully dispose of the riglits and matters 'v question as a Court of 
 Equity could do." In St. Michael's College 7'. Merrick, 1 App. II. ."'20, it v.-as 
 held that, although the Legislature used the identical words in which the jv.dgment 
 of the Cout-^-s was couched when decidiui.: that the power- to plead at law was con- 
 fined, and extended the right to plead any equitable defence whatever, the language 
 'ised was still permissive, and still left 't optional wil,h the parties to avail them- 
 -lelvesof it or uot. Does this ojition ;,tiH exist? The langnaue is still i>ermissive, 
 and it may be uoubted whether sub-sec. S of the present section sliews more clearly 
 
 I- 
 > 
 
 
 r 
 9 
 
34 
 
 JUDICATURE ACT. 
 
 V»^ft 
 
 than did the former sec. 8 the intention of the Legislature to compel the settlement 
 of all matters in controversy in the first action. It may be said that the powers of 
 the Courts are now identical. Was not that argued and held before ? (See the 
 judgment of Burton, J. A., in St. Micliael's College v. Merrick (ante), at pp. 529 
 et set]., and Victoria Mutual Fire Insurance Company v. Bethune (1 App. R. at 
 pp. 422 ct sei/). Sub-sec. C indeed provides that no cause or proceeding shall be 
 restrained by injunction, and this may, practically, have the effect of compelling 
 equitable defences to be pleaded, for if they be not pleade'^ iudgment may be ob- 
 tained and enforced at law (unless, indeed, the word "proccL'. ng" does not extend 
 to an execution). The judgment, following the former practice, would not be con- 
 clusive if the equitable defences were not raised (as to this, hov ever, see St. 
 Michael's College v. Merriclc at p. 532), but if the means of restraining the eniorce- 
 ment of the judgment be taken away, is it not practically conclusive ? Even this 
 section (sub-sec. G), however, uses the permissive "may" in providing for the rais- 
 ing of equitable defence.^, and although no injunction can be obtained, an order 
 may be applied for staying the proceedings. See, however, Garbutt v. Tawcus, 
 L. R. 1 Ch. D. 155, where it .as held that a defendant in an action at law, hav- 
 ing an equitable defence, should obtain from the Judge of the Common Law 
 Division leave to plead jhat defenc?, and cannot obtain from a Judge of the Chan- 
 cery Division a directi<' i to stay iiroceedings in the Common Law Division ; and 
 this prevails whether the action at law was commenced before or after the Judica- 
 ture Acts came into operation. An action pending in one Division will not be 
 stayed by another Division or Judge, unless the defence is on grounds unconnected 
 with the cause of action. 
 
 By tiic Chancery Orders (126), it was provided that " a defendant may claim, by 
 answer, any relief against the plaintiff, which such defendant might claim by cross- 
 bill. " A cross-1 )ill was a bill brougiit by a defendant against the plaintiff in another 
 suit, (and, if necessary, other i)arties, ) touching the same matter. It frequently 
 happened that a complete decree could not be made without a cross-bill, or cross- 
 bills to bring the whole matter in dispute completely before the Court. In all such 
 cases it became necessary for some or one of the defendants to the original bill to 
 file a bill against the plaintiff, and, if necessary, the other defendants to that bill, 
 or some of them, and bring the litigated point properly before the Court, Daniell, 
 Chy. Prac., (5Ed.)1402. 
 
 The present Act.~-'&\\x>-x\c(ias\^\& of two parts: (<?) relief which may be given 
 as against the plaintiff, {b) relief which may be given as against a co-defendant, 
 or against some person not already a party to the suit. In the latter the relief is 
 limited to relief "relating to or connected with the original subject of the cause 
 or matter." In the former there is no express limitation. Can, then, a tiefendant, 
 instead of raising a defe^ice or, conjointly with his defence, set up a totally distinct 
 cause of suit, and ask for relief? "Natural equity says that cross demands should 
 compensate each other, by deducting the less sum from the greater ; and that the 
 difference is the only sum which can be justly due. But the Common Law refused 
 to carry out this principle of justice, and held that where there were mutual debts 
 unconnected they should not be set-off, Imt each must sue. The natural sense of 
 mankind was first shocked at this in the case of bankrupts, and accordingly the 
 Legislature interfered, and allowed a set-off at Common Law and a few other cases. 
 (4 Anne, c. 17, s. 11; 2 Geo. II., c. 22, s. 13; 8 Geo. IL, c. 24, s. 4.) The Court 
 of Equity allowed set-off in some cases not within these Statutes, where although 
 these debts aro independent, yet there was mutual credit," Snell's Eq. 442-3. So, 
 too, upon very slight evidence of an agreement, that the debts <houId be the sub- 
 ject of set-off, Lundy v. McCuUa, 11 Gr. 368, 
 
 In order that one complete view may be given of the practice relating to this 
 important feature of the new system, the rules affecting it are here given : — 
 
 Order XV., TJ, 3. A dcii'iulant in in action may set-off or set up by way of 
 counter-claim, aH.unstthe claims of the plaintiff, any right or claim, whether such 
 set-off or counter-i.-laiMi i<ound in damages or not. 
 
 (a) Such .set-off or ununter-claim shall have the same effect as a statement of 
 claim in a cross action, so as to enable the Court to pronounce a final judgment in 
 the s.uuc action, Imth on tlie original and on the cross claim. 
 
 {h) But thi' ( 'uurt or a.ludge may, on the application of the plaintiff ))cfore 
 trial, if in the opinion of the ('ourt or Judge? such set-off or counter-oltim cannot 
 be conveniently disposed of in tlu' pe.iding action, or ought not to be allowed, refuse 
 puruiissiou to the defendant tu avail himself thereof. 
 
RULES OF LAW. 
 
 Order XVIII., R. 5. — Where a defendant by his deftiice sets up any counter- 
 claiiri which i-aises queBtions between himself and tlie plaintiff alonj,' with any other 
 person or persons, he shall add to the title of his defence a further title similar to th<3 
 title in a statement of claim, setting fortli the nances of all the persons who, if such 
 counter-claim were to bo inforced by cross action, would be defendants to such 
 cross action, and shall deliver his defence t(. such of them as are parties to the 
 action within the ])eriod within which he is reriuired to deliver it to the plaintiff. 
 
 11. G. Where any such person, as in the last i)receding Rule mentioned, is not a 
 party to the action, lie shall be summ<ined to appear by being served with a copy 
 of the defence, and such service shall be regulated by the same rules as are herein- 
 before contained with respect to the service of a writ of summons, and every" de- 
 fence so served shall be indorsed in the Form No. 5 in Appendix (B) hereto, or to 
 the like effect. 
 
 R. 7. Any person not a defendant to the pction, who is served with a defence and 
 counter-claim as aforesaid, must appear thereto as if he had been served with a writ 
 of summons to appear in an action. 
 
 R. 8. Any person named in a defence as a party to a counter-claim thereby made 
 may deliver a reply within the time within which he might deliver a dei nee if ih 
 were a statement of claim. 
 
 R. f). Where a defendant by his statement of defence sets np a counter-claim, if 
 the plaintiff, or any other person named in manner aforesaid as party to such 
 counter-claim, contends that the claim ^-hereby raised ought not to be disiiosed of by 
 way of counter claim, but in an independent f,ction, he may at any tiniu within 3 
 weeks from the delivery of such statement of d af ence, apply to the Court or a Judge 
 for an order that sucli counter-claim may bo excluded ; and the Court or adjudge 
 may, on the hearing of such application, make such order as shall be just. 
 
 R. 10. Where in any action a set-off or counter-claim is established as a defence 
 against the plaintiff's claim, the Court may, if the balance is in favour of the de- 
 fendant, give judgment for the defendant for such balance, or may otherwise 
 adjudge to the defendant such relief as he may be entitled to upon the merits of the 
 case. 
 
 In Quin v. Hession (40 I, T. N., S. 70), the acticm was for slander. The de- 
 fendant delivered a defence and counter-claim, claiming damages from the plaintiff 
 on account 'of slandenms words alleged to have ))een spoken on a distinct and 
 prior occa.iion to that on whicli the words of which the plaintiff complained were 
 I !;tered. On a motion to strike out the counter-claim, Palles, V. B., said :— " I am 
 of opinion that, ujionthe true construction of the Judicature Act, and the rules for 
 carrying it into effect, any claim of a defendant against a plaintiff, whether con- 
 nected or disconnected with the original subject matter of the action can be made 
 the suliject of a counter-claim, and if it be embarrassing or inconvenient, the only 
 remedy is by applying to strike it out. This ojiinion I ground upon the .'ird sub- 
 section of the 24th section of the Ju<licature Act (O.it. Act, s. IC, sub-s. 4); 
 and the 22nd Schedide Rule Eng. (Ordi'r XIX, r. T, ; Oi.t. Order XV, r. 3). On 
 reading the sect'on of the Act it might at first ^igtit appear Miat thejrelief against 
 the plaintiff mt ntioiied in that section as given to a defendant ' in respect of any 
 legd estate, right or title claimed or asserted bj' him ' was something conriected 
 with land, and if so we wtmld have no jurisiliction to allow this counter-claim be- 
 fore us. _ But by Schedule Rule 22 (Eng. Order XIX, r. ,'{ ; Ont. Order XV, 
 r. :!), which is j)art of the Act, the remedy is extended and a general right is given 
 to a defendant to counter-claim against a ])laiiitiff. It has been contended tliat 
 these words, 'isolating to or connected with the original subject of the cause or 
 matter,' qualify tiie nature of the relief which may be souglit l)y counter-claim by 
 a detendiiut against a plaintiff alone, as well as against a plai?itiff ' and any other 
 l)erson ;' and in support of this contention the case before Hall, V. C, which I 
 liave mentioned (I'adwick r. Scott, L. R. 2 Cli. D. TMi), and that before the 
 Master of the liolls (Naylor r. Farrar, W. N. (1878)187) have l)een cited. I think, 
 however, that the words ([ualify only that portion of the section with whicii they 
 are in iimnediate connection, namely, a counter-claim whicli seeks relief against 
 a third jiarty as well as against the plaintiff. This construction is strengthened by 
 Seliedule Ji,, 22 (Eng. Order XIX, r. .'{; Out. Order, XV, r. ;?), than which it 
 is inipussible to c(incei\e wider idiraseology. Theii conies the second (juestion, 
 whether in the present case the counter-claim is of siicli a nature that it cannot 
 conveniently be disposed of at the same time as the original claim. On tiii ■ j- 'iut 
 
 k 
 
«ii 
 
 36 
 
 JUDICATURE ACT. 
 
 i 
 
 I am of opinion that there is nothing to hinder both being disposed of at the same 
 time, but, on the contrary, that it will be doing complete justice to both parties to 
 have them tried together. " 
 
 Cappeleus v. Brown, W. N. (1875) 231, Quain, J. , said : " That the counter- 
 claim here set up is brought upon an earlier contract than the original action may 
 be a very good defence to it, but is not a sufficient reason for refusing to allow it. I 
 have a discretion as to allowing the defendant to set up a counter-claim ; and may 
 strike it out, after it has lieen set up, when I think it ought not to be allowed. For 
 instance, in an action for assault and battery, I would not allow a counter-claim to 
 be set up for seduction of defendant's daughter. It was the scandal of the past 
 procedure that A might have a liquidated claim_ against B, and B a claim for 
 damages against A, and yet B could not set up his claim in an action by A, but 
 must bring a fresh one. Pleading a counter-claim under circumstances such as the 
 present, I look upon as analogous to pleading a defence arising after action brought, 
 and therefore it comes within the principle of Order XX, r. 3, (Ont. O., XVI, r. 
 7.) I order that defendant be at liberty to deliver hU counter-claim ; and that the 
 plaintiff have a week to consider whether he will continue his action. If he elect 
 to discontinue, all the costs to be his." 
 
 But where the counter-daim is wjainst a third party, as well as the plaintiff it must 
 relate to, or be connected with, the original subject of the cause or matter (Quin v. 
 Hession ante ; Padwick v. Scott, L. R. 2 Ch. D. 730 ; Harris v. Gamble, L. R. 
 6 Ch. D. 748 ; but see remarks in Cunningham & Mattinson's Precedents of Plead- 
 ing, p. 76). 
 
 Care must be taken to distinguish betiveen cases ii: lohiih a ^ounter-claim may be filed 
 and cases in i^'hicli it is desired only so far to bring ,i third party into tlic action as tliat 
 lie ;'-ay be bound by the result under O. XII, rr. 10-25. In the (Central African 
 Trading Company (Limited) v. (rrove, 45 L. J. Ex. 510, in answer to a clami by 
 the plaintiff Company for money lent, the defendant set up a counter-claim against 
 the Company and one T., stating that T. agreed to ]nirchase a business from the 
 defendant on the terms that T. should obtain for defendant an indemnity from cer- 
 tain creditors who had charges upon the good will and effects, and also should pay 
 certain of defendant's debts for him, and should pay defendant a share of profits 
 and an annuity ; that the Jjusiness was accordingly transferred to T., who, after 
 performing a small part only of the consideration, formed the plaintiff Company, 
 almost all the shares lieing held by T. and his relatives ; that the (.'onii)any took 
 ■ ver the business, and adopted the agreement, iDut although they performed part, 
 .'■ley failed to perfon?i all the terms of it. Defendant claimed damages against the 
 Ct -ipnny for their l^reach ; that they might be ordered to obtain an indemnity and 
 discharge from the creditors ; payment by them of the unpaid portion of the an- 
 nuity, and, in the alternative damages against T. f<>'- his breach of the agreement. 
 Bramwell, L. J., said : " I am of opinion that this ajipeal should l;e dismissed. T 
 may say that I entirely agree with the ^.^ueen's Bencii Division in wishing that the 
 whole of these matters could be tried together, but I think ujion consideration tliat 
 cannot be done. It is not within the rule, and not intended that any rule tlioidd 
 comprehend it. There jeems to be this dilemma in the matter ; the counte' claim 
 either states that the. was a noviition of tlie contract or it does not; if it does, 
 thet' T., on the face of the counter-claim is not a party to tiie contract ; if it '^'"'h 
 not, theTi defendant's remedy is against T. ami not against the Company. All t hat 
 he states in his counter-claim is, ' It may be that I owe the plaintiffs the money, 
 but if so, I have a remedy over against T. ' But that case is within Order XVT. 
 (Ont, O., XII.) If there had been a distinct allegation that there was a novation 
 of the contract, then '!'. would not be wanted in tlie actio)i at all. If, on the other 
 hand, the allegation had been that tliere was no novation, but an alternative claim 
 for damages a^^ainst T. , then the case is within Order XVI. (Ont. O., XII.), ancl 
 the claim is not the subject matter of a counter-claim. The only misgiving I have 
 ha<l is whether the defendant being in an uncertainty as to Vvhether there ha.s been 
 a novation or not could make any difference. But that cannot really matter, be- 
 cause, if he had lieen certain, he would have no right to make T. a party to the 
 counter-claim ; he cannot have a right liecause he is not certain. 
 
 Counter-cli.tn or defence. On the othur hand, too, care must be taken to dis- 
 tinguish between cases in which it is necessary to set up a counter-claim, and where 
 it is sufficient merely to set up the facts as a defence. Sidi-sec. 4 gives to the 
 Court power to grant to a defendant all such relief "as such defendant shall have 
 properly claimed l)y his jileading." By O., XV., r. !), a counter-claim 'Sjhallstate 
 specifically the relief " claimed either simply or in tlie alternative, and may also ask 
 
COUNTER-CLAIM. 
 
 87 
 
 for general relief. Under sub-sec. 3 (above) if a defendant " alleges any ground of 
 equitable defence, "the Courts shall give "the same effect by way of defence, .... 
 as the Court of Chancery ought to have given." The deciding point then may be in 
 what cases under the old practice had a cross bill to be filed in Chancery, and in 
 what coii'd the defence have been raised by answer in the same suit. In Eyre v. 
 Hu"-hes, L. R. 2 Ch. D. 148, a mortgagee filed a bill for foreclosure. The defend- 
 ant desired to open certain signed accounts and set up certain facts sufficient to 
 entitle him to such relief, but did not plead them as a counter-claim. _ It was argued 
 that this was relief which could formerly have be^- obtained only in a cross suit, 
 and that it was inadmissible except by way of counter-claim. The Court held that 
 relief could formerly have been given without a cross bill. The old practice is laid 
 down in Daniell's Chancery Practice, as follows : ' ' Where a defendant seeks the 
 aid of the Court for the purpose of enforcing his right, he must file a cross-bill ; but 
 when he relies upon his rights, merely by way of defence to the relief sought against 
 him, it is not necessary to do so. In a suit for specific performance, however,^ if 
 the defendant proves an agreement different from that insisted on by the plaintiff, 
 the Court, without a cross-bill being filed, may decree the same to be executed." 
 (Ed. p.) 
 
 Questions between co-defendants may be raised by a pleading which states both a 
 defence as against the plaintiff and a claim against a co-defendant, but such plead'";; 
 is not a counter-claim and should not be so intituled. It will however be a suffi- 
 cient notice under O. XII. , r. 19, (see notes to that order). See also McLay v. 
 Sharp, W. N. (1877), 216 ; Bagot v. Easton, L. 11. 11 Ch. D. 392 ; Butler v. Butler, 
 49L. J. Chy.,N. S. 742. 
 
 It is proposed here to give a short summary of the cases in which a counter-claim 
 has been allowed or disallowed ; 
 
 Counter-claim not equal to plaintiff's claim. " I also agree that the statement of 
 defence is good by way of counter-claim, though it may not amount to an answer 
 to the whole of the claim. The effect of the recent legislation has been to do away 
 with much of the former technicality with regard to pleadings, and to enable the 
 defendant to make any claim 'n his defence in the nature of a cross action. If he 
 sets out that which would be an answer to part of the claim only, such a statement 
 must be allowed and will not be demurrable," Mostyn v. West Mostyn Coal and 
 Iron Co., L. R. 1 C. P. D. at p. 153, per Archibald, J. 
 
 Rectifying or netting aside a deed sued upon, {/6). 
 
 Must be in respect of a matter which zooiild be the proper subject of an action. To an 
 action b ' an administrator for the balance of the intestate's banking account at 
 the tinr3 of his death, the defendants in their statement of defence sought to avail 
 themsel -es either by way of set-off or of counter-claim, of a debt due to them from 
 the intestate as one of several makers of a promissory note for £1,000 which did 
 not be(',v)me due until after the intestate's death. Reply, that before action, an 
 order was made in an administration suit in the I liancery Division, to take an ac- 
 count of the debts and liabilit'es afl^c^ting the personal estate of the deceased, of 
 which the defendants liai'iro acti'^r* had notice ; and that equity would restrain any 
 pi'oceedingM on the note unUl the account liad been taken. On demurrer to this 
 wply :— Held, upon the authority of Rpes r. Watts (11 Ex. 410), that the claim in 
 r-^speot of the [jromissory note cmdd not be relied on as a set-off ; and that, in ac- 
 cordance with the practice in Einiity.the defendants must, under the circumstances, 
 be restrained from setting it up by way of counter-claim, and be left to prove for it 
 in the administration suit, Isewell j'. The National Provincial Bank, L. 11. 1 
 C. P. ]>. 4il() ; w) also a spt-('flF cannot be m,iin';ained of a debt contracted liy the 
 plaintiff during infancy and not ratified by him in writing after full age, Rawley 
 t. Rawley, L. R. 1 Q. B. 460. 
 
 A defendant mortgagee, in an action in the Chancery Division to set aside his 
 mortgage, commenced an action in the Queen's Bench Division to enforce his 
 security and obtaineil judgment, which was not to be enforced without the leave 
 of tlie .fudge of the Chancery 1 )i visi< «n. He then counter-claimed for leave to enforce 
 that judgment, or in the alternative for judgment, for what was due to him in respect 
 ofthemortgagp. On moticm to exclude the counter-claim :— Held, tliat, asn(>action 
 ccnild have been brought wlien judgment had already l)een obtained in the Queen's 
 Bench Division, the counter-claim was wrong and must be struck out, Birming- 
 ham Estates Company v. Smitli, L. R. 13 Ch. D. 506. Tn Bellas -'. Neptune Marine 
 Insurance Compatiy, T.. R. 5 C. P. D. .^4. Bramwell, I . J., said : " Tlie orders and 
 rules under the Supreme Court of JuLlicature Acts, 1.'j73, 1875, are uiatterb of pro- 
 
 > 
 
38 
 
 JUDICATURE ACT. 
 
 i.,1 I i 
 
 cecluro and are not intended to alter the law or the rights of the parties. If before 
 those Htatutes the plaintiffs would have been entitled to maintain the action for 
 the full amount from which the defendants seek to deduct £40, the plaintiff can 
 maintain it now." 
 
 Scpumlc loiiiitcr-clijims against joint plaintiffs.— ^\fo railway companies, having, 
 as joint lessees of a railway, sued for statutory tolls, the defendant set up against 
 each company separate counter-claims for damages in respect of delay in the 
 delivery of goods. The plaintiffs applied to strike out the counter-claims, but no 
 reasons were alleged why they could not be conveniently disposed of in the action :— 
 Held, that the counter-claims ought not to be struck out. The Manchester, 
 Sheffield and Lincolnshire llailway Company, and the London and Northwestern 
 Railway Company v. Brooks, L. 11. 2 Ex. D. 243. 
 
 Against plaintiff in same riglit. — A defendant must not set up by way of counter- 
 claim against tlie claim of a plaintiff, suing only in a distinct personal character, 
 claims against him personally and also as an executor. "I should understand that 
 the defendant in any action might set-off by way of coimter-claim, any claim 
 against the plaintiff, /// t/ie same cliaracter in lo/iick he snes himself," per Lindley, J., 
 in Macdonold r^ Carringtcni, L. R. 4 C. P. D. 28, 38 ; see also Newell v. The 
 National Prov. Bank, L. R. 1 C. P. D. 4% [ante). 
 
 Plaintiff suing as assignee of a debt. — The statement of claim alleged that the 
 plaintiff sued as assignee, by deed of a debt due from the defendant to the assignor 
 on a })uilding contract. The defendant pleaded, l)y way of set-off and counter- 
 claim, that he was entitled to damages for breaches of contract by the assignor to 
 complete and deliver the buildings at the spcciiied time, whereby the defendant 
 lost the use of them. On demurrer to so much of the defence as alleged breaches 
 of contract by the assignor : — Held, that the defendant was not entitled to recover 
 any damages against the plaintiff, but was entitled liy way of set-off or deduction 
 from the plaintiff's claim to the damages which he haa sustained by the non-perfor- 
 mance of the contract liy the assignor ; and that the form of the defence must be 
 amended accordingly. Young v. Kitchen, L. R. 3 Ex. D. 127. 
 
 Claim for account ; counter-claim for specific performance. First mortgagee being 
 sole defendant to an action by secona mortgagees fur an account of what was due 
 to them respectively, find to have a contract of sale e.itered into by the first 
 mortgagee completed, and the sale moneys applied accordingly, made the purcliaser 
 co-defendant with the plaintiffs to a counter-claim for specific performance by the 
 purchaser with the concurrence of the plaintiffs, alleging that their concurrence 
 was a term of the contract, and that the purchaser refused to complete without it. 
 The defence and counter-claim ha\ ing been served on the purchaser, he moved to 
 have so ;much of the counter-claim as affected him excluded : — Held that, there 
 being a question between the defendant and the plaintiffs, ' ' along with " the purchaser 
 which the defendant was entitled to raise by cross-action, the purchaser was pro- 
 perly made a defendant to the counter-claim, and the motion refused with costs 
 accordingly, Dear v. Sworder ; Sworder v. Dear, L. 11. 4 Ch. D. 47(5. 
 
 Matriediuoman defendant. — To an action by executors for the purpose of charg- 
 ing a marrie'' woman's separate estate with a debt to their testator contracted on 
 the faith of huch separate estate, the husband who had been made a defendant, ami 
 his wife raised a counter-claim for money belonging to the wife, not part of her 
 separate estate, and for certain chattels in the possession of the testator at liis 
 death, which it was alleged were the property of the husban.. : — Held, on motion, 
 that the claim to the chattels and money was a proper subject of counter-claim, 
 Hodson V. Mochi, L. R. 8 Ch. D. 569. 
 
 Alust seek relief against plaintiff. — A counter-claim must claim relief against the 
 plaintiff, and he must be made a party to it. The relief claimed by a counter-claiiu 
 must relate to the specific subject matter of the action. Where a counter-claim 
 sought indemnity : — Held, that the indemnity must be confined to the property 
 which was the subject of the action, Harris v. Gamble, L. R. Ch. D. 748. 
 
 T. contracted with the H. Gas Company to_ erect certain buildings for a certain 
 sum. By the terms of the contract the buildings were to be erected to the satis- 
 faction of the company's engineer, and if the work did not i)roceed to his satisfac- 
 tion the company were empowered to take it out of T's. hands and finish it them- 
 selves, charging T. any additional costs that might thereby be caused. R. gave a 
 Ijond to the company for £200 for the due performance by T. of the contract. The 
 work not progressing to the augineer's satisfaction, it was taken out of T's, hands 
 
COUNTER-CLAIM. 
 
 89 
 
 ies. If before 
 
 the action for 
 
 e plaintiff can 
 
 panics, having, 
 Het up against 
 ' delay in the 
 claims, but no 
 n the action :— 
 e Manchester, 
 Northwestern 
 
 i^ay of counter- 
 nnal character, 
 lulerstand that 
 lim, any claim 
 ;■ LiniUey, J., 
 Newell V. Tiie 
 
 lleged that the 
 to the assignor 
 f and counter- 
 the fissignor to 
 the defendant 
 lleged breaches 
 itled to recover 
 ff or deduction 
 thenon-perfor- 
 efence must be 
 
 lortgagee being 
 f what was due 
 ito by the first 
 e the purchaser 
 irmance by the 
 ;ir conctirrence 
 lete without it. 
 iv, he moved to 
 eld that, there 
 I " the purchaser 
 shaser was pro- 
 ised with costs 
 3. 
 
 u-pose of charg- 
 r contracted on 
 defendant, aiiil 
 lot part of her 
 testator at his 
 eld, on motion, 
 counter-claim, 
 
 ilief against tlie 
 a counter-claim 
 a counter-claim 
 
 the loroperty 
 D. 748. 
 
 gs for a certain 
 
 ;ed to the satis- 
 
 to his satisfac- 
 
 1 finish it tlium- 
 ed. R. gave a 
 contract. The 
 it of T's. hands 
 
 by the comnftny, whereupon T. brought an action. The company put in a state- 
 ment of defence, alleging (/»/fr alia) that the work had not i)rogressed to tho satis- 
 faction of their engineer, and that tney had thereupon completed it thenu'elvos at 
 a cost of £2.54 14h. 9d. more than would have been incurred if it had been Knished 
 l)y the plaintiff, and by way of counter-claim, repeating the above allegations, 
 they claimed from R., by virtue of the bond given by him for tho due performance 
 by 1". of the contract, the sum of £200 in part satiafaction of the said sum of £254 
 14s. 9d.: — Held, by the Exchequer Division, (Cleasby, B., and Hawkins, J.,) that 
 a counter-claim should aok relief against the plaintiff alone, or against the i)laintiff 
 jointly with another person, and the counter-claim here not being a joint one against 
 T., the plaintiff, and R., could not stand. It was no counter-claim against T., and 
 there could not be one against R. alone. Turner v. Hednesford Gas Company, 38 
 L. T. 37. In appeal, (L. R. 3 Ex. D. 14.'),) however, this decisicm was reversed, 
 Bramwell, L. J., said: "I think the true meaning is that if the defendant could 
 have made tho plaintiff and the third party defendants in any action the counter- 
 claim is valid. Could the defendants have brought an action against R. and 
 the plaintiff ? I am of opinion they could. The relief that tho defendants claim 
 against R. is indemnity for the breach by tho plaintiff of his contract to the 
 extent of £200, but the relief that is sought is on a contract between the defendants 
 and R. ; it is not a joint, but a several, liability. If the obligation, however, 
 had been created between the parties in one instrument, limiting R.'s liability 
 to £200, in that case it would have been a joint cemtract, and I think that the sub- 
 stance of the actual contract between the parties is the same, unless we hold that 
 the amount sought to be recovered is an independent liability arising on a different 
 contract, the present defendants would be entitled to join R. as a defendant in 
 an action. As they can do that, I think that R. can be joined with the plaintiff 
 in the counter-claim." 
 
 Inconsistent Reliefs. — In Evans v. Buck, Buck v. Evans, L. R. 4 Ch. D. 432, 
 Jessel, M. R., said :— "Under the old practice no man could file a bill for alterna- 
 tive relief founded on inconsistent allegations. This counter-claim says, in effect, 
 that the settlement is right in form and in substance, but if the Court should be of 
 opinion that it is not, then it claims that it may be rectified, and for that purpose 
 makes a person a party who was not a party to the original action. That person 
 demurs to the counter-claim, and says, 'If you fail to establish a case for rectifying 
 the deed, you have no reason for bringing me into an action with which I have no 
 concern.' The same rules of pleading which jirevailed under the old law prevail 
 now, unless there is anything in the Judicature Act or in tho new Orders or Rules 
 which i)revents it. I am referred in suiiport of the counter-claim to Rules of Court, 
 1875, Order XVI., rule 3, (Ont. O., XII., rule 3,) which provides that 'all persons 
 may be joined as defendants against whom the right to any relief is alleged to exist, 
 whether jointly, severally, or in tho alternative, but it does not say in an incon- 
 sistent alternative. The sixth rule provides that when a plaintiff is in doubt as to 
 the person from whom he is entitled to redress, he may join two or more defend- 
 ants to the intent that the question as to which, if any, of the defendants is liable, 
 and to what extent, may be determined as between all parties to the action. It is 
 clear that these rules do not in express terms ajvply to a counter-claim, nor can 
 they be taken to over-rule the old practice of tho '^ourt, and considering the terms 
 of Order XXII., rule 9, (Ont. O , v VIII., r. 9) i . in of opinion that such a form 
 of litigation ought not to bo allowed. The demun'er must be allowed with costs." 
 But the right to ask for inconsistent reliefs under the new practice has since this 
 decision been much discussed, and it may be urged that if (as has been held) a 
 plaintiff can claim in inconsistent alternatives and a defendant counter-claim against 
 a plaintiff in the same way, there should be a similar mode of claim allowed in the 
 case of a counter-claim where a third party is made a defendant to it, see Child 
 V. Stenuing, L. R. Ch. D. 413, and O. XII., rr. 1, 3, ^nd not>.s. 
 
 Third party brought in by counter-claim. —A person named in a defence as a party 
 to a counter-claim thereby made, cannot counter-claim against the defendant. 
 Street v. Cover, Cover v. Street, L. R., 2 Q. B. U. 498. But a person made a 
 jlarty by a notice under O. XII., R.R. 19-25, can give a similar notice to and bring 
 in another, Fowler I/. Knoop and The London Banking Association, W.N. (1877), 
 68, but see notes to O. XII., R. 19. 
 
 Matter arising after action.— When a defendant delivers a counter-claim, any 
 damages thereby claimed must be limited to the date when the writ was issued. 
 Original Hartlepool Collieries Company v. Gibb, L. R. 5 Ch. L. 713; but see Ellis 
 V. Munson, 35 L. T. N. S. 585, where it was held that a counter-claim founded on 
 
m 
 
 40 
 
 JUDICATURE ACT. 
 
 facta which have ariHen Hince the action was bruuKiit must be pleaded as ho arising, 
 HO that the plaintiff may be able to confosH the plea ; and if it is not so pleaded tlie 
 plaintiff should take out a summons to strike it out, unless it be amended. And 
 see Lees v. Patterson, Ju 11. 7 Ch. D. 8(iG ; Beddall v. Maitland, W. N. (1881) 33. 
 
 to a 
 
 defend 
 
 /•'orw of counter-claim. -~[^^& O. XVIII., II. 5.) The same rules 
 counter-claim as to a statement of claim ; therefore the facts on which the i 
 ant relies must bo stateil in the body of his counter-claim, and cannot be inferred 
 from the plaintiff's statement, and, if the defendant wants alternative or general 
 relief the counter-claim must ank it. (Halloway v. York, 2r) W. II., 627.) A 
 counter-claim must contain in itself a specific statement of the facts upon which 
 reliance is placed for the relief claimed. It is not sufficient that the facts relied 
 upon appear in the statement of defence, even though that and the counter-claim 
 form one continuous document. A coimter-claim defective in this respect was 
 dismissed with costs, leave to amend being, under the circumstances of the case, 
 refused, Crowe v. Barnicot, L. II. t5 Ch. D. 758. A writ of iic exeat against a 
 defendant was obtained by the plaintiff immediately after the commencement of 
 the action. Tlie defendant was arrested, but was discharged upon payment to the 
 sheriff of the sum for which the writ was marked. By liis statement of defence the 
 defendant alleged that the writ had been improperly obtained, and claimed damages 
 for his arrest, and at the trial he insisted \ipon this claim. The defenilant made the 
 allegation that the writ had been improperly issued, and the claim for damages, in 
 one paragraph of the statement of defence, which was numbered consecutively with 
 the others, but was not headed separately as a counter-claim : — Held, that the 
 pleading was good as a counter-claim, Crowe v. Barnicot, distinguished, L. R. 6 
 Ch. D. 753 ; Lees v. Patterson, L. R. 7 Ch. D. 8G6. 
 
 Messrs. Cunningham and Mattinson summarize these cases as follows :—" The 
 combined effect of these cases and Rules 3 and 10 of Order XIX. seems 
 to be that the paragraphs which make up the counter-claim may be numbered 
 (m consecutively after those which constitute the defence, and altnough it is not 
 absolutely essential that the commencement of the counter-claim should be distin- 
 guished from the end of the defence in any marked way, yet it is necessary that 
 there should appear in the body of the counter-claim itself all the facts on which 
 the defendant relies in support of his counter-claim ; and it is not enough that the 
 necessary facts can be found scattered throughout the defence and the counter-claim. 
 It is submitted, however, that there is no objection to an express incorporation by 
 appropriate words of paragraphs to be found in the defence into the counter-claim, 
 and that when this is done the effect is that the aUsgations of fact set out in the 
 incorporated paragraphs must be taken as set out in the body of the counter-claim 
 within the meaning of the Rule ; (see page 82)." Since the publication of this work 
 the case of Birmingham Estates Company v. Smith, L. R. 13 Ch. D. 506, has 
 been determined. Jessel, M. R., there said: "Then the plaintiff company object 
 to the counter-claim, not because this is not a jjroper subject of counter-claim, 
 which is a new objection, but becaxise they say the defendant has no right to such 
 relief, and he has not properly referred to the facts. Now, I did not decide in 
 Halloway v. York, 25 W. 11. 027, tliat a counter-claim should do any more than 
 state the facts properly on which the counter-claim was founded. I did not decide 
 that they were to be stated all over again. A defendant bringing in a counter-claim 
 may say, 'I rely on the facts stated m the 3rd, 4th, and .Oth paragraphs of the 
 statement of claim, and the 7th, 9th, and 11th paragraphs of the statement of 
 defence.' He need not print them all over again ; it is quite enough if he refer to 
 them, and thereupon counter-claims. That is what the defendant has done. He 
 refers to 'the indenture of the 2(jth of June, 187(5, in the jileadin^o mentioned,' and 
 to certain paragraphs in the statement of defence, which is a very good and cheap 
 way of stating his case— much better than setting it all out— and then he counter- 
 claims in the alternative for what he would have certainly been entitled to if he 
 had not got judgment in the Common Law action, namely, for the money due to 
 him under the indenture." 
 
 It must be noted, however, in this connection, that in Ontario there is no rule 
 similar to the English rule 10 of O. XIX. (see ante), which provides that " where 
 any defendant seeks to rely upon any facts as supporting a right of set-off or coun- 
 ter-claim he shall in his statement of defence state specifically that he does so by 
 way of set-off or counter-claim." 
 
 Foi m—Style of cause. 
 
 -In Form (i7 the style is given thus : 
 Between A. B., Plaintiff, 
 and 
 C. D., Defendant. 
 (By original action.) 
 
rOUNTER-OLAIM. 
 
 41 
 
 And Between C. D., Plaintiff, 
 and 
 A. B., Defendant. 
 (By counter-claim.) 
 
 (). XVIII., r. r>, directs th.it where a defendant setfl uj) any counter-claim 
 which raineH queHtionn between himHclf and the plaintiff, alon;,' with a>iy ot/ier person 
 or persons, he mIiuII add to the title of his defence a_ further title.etc. Where no 
 "other person " is brought in by the counter-claim it has been said by Quain, J., 
 in Williams ;■. Wright, W. N. (IS?.')) 232, to be utterly wrong to add a further title. 
 " The new procedure recognizes the jjarty sotting up a counter-claim in no other 
 light than as a defendant. The heading of the liiverpool form is siinply absurd." 
 But wliere all the issues raised on a counter-claim were raised on the claim the 
 plaintiff was not allowed to put in evidence after the plaintiff's evidence was closed, 
 Green c. Sevin, 4!) L. J. Ch. (N.S.) 1«6. 
 
 Fraclice—Apf'Hciitio)! to strike out couuter-claivi. — An application to strike out a 
 coimter-claim on the ground that it cannot conveniently be tried in the action is a 
 Court motion, Naylor v. Farrer, W. N. (1878) 187 ; but see notes to O. IV., r. 1 (c/). 
 
 Priirtire— Order of Examination of Witnesses at trial. —The defendant in an 
 action for a legacy sought a set-off by counter-claim, and raised issues not involved 
 in the claim and defence. He was not allowed in cross-examination of the plaintiff 
 to ask questions relevant only to the issues upon the counter-claim, but was allowed 
 to recall him as his own witness, Re Woodfine, Thompson v. Woodfine, 47 L. J. 
 N. S. Ch. 832. 
 
 Practice — Disposition of counter-claim wliere plaintiff does not prosecute his claim. — 
 An order will not be made upon a counter-claim until the original claim has been 
 dealt with. Therefore, where in answer to a statement of claim, a defence and 
 counter-claim had been delivered, and some months after the expiration of the 
 period allowed to the plaintiff for replying, a motion was made " for a decree 
 according to the prayer of the counter-claim," the motion was dismissed. The 
 proper course to adopt in such a case, where there is undue delay on the part of 
 the plaintiff, is to give notice [of motion to dismiss the original action for want of 
 prosecution, and for judgment in the counter-claim, Rolfe v. McLaren, L. R. 3 
 Ch. D. 10(1, followed in Aitkin v. Dunbar, 4G L. J. Ch. 489. 
 
 Practice — Leave to file after time for pleading elapsed. — Where the defendant in a 
 foreclosure suit obtained an order for leave to file a counter-claim by way of set-off, 
 and through the negligence of his scdicitor no counter-claim was delivered, and a 
 decree of foreclosure was made in his absence, an application more than six months 
 afterwards for leave to file the counter-claim was refused on the ground of delay, 
 Wilkins t. Bedford, 35 L. T. 622; but see Evans v. Gann, W. N. (1875) 199, and 
 see as to negligence of solicitor as a ground for relief cases collected in note to 
 sec. 38. 
 
 Practice— Judgment— Costs,— In an action tried by a jury, in which the plaintiff 
 proves a claim, but a counter-claim of less amount is proved by the defendant, the 
 plaintiff recovers judgment for the balance only, and if no order as to costs is made, 
 the plaintiff's right to recover costs under the County Court Act, 1867, and Order 
 LV. (Ont., O. L.,) of the Judicature Act, nnist be decided with reference to that 
 balance, and not to the amount of the claim j)roved. Staples v. Young, L. R. 2 
 Ex. D. 324. The County (Jourt Act, 1867, s. 5, does not apply to coimter-claims, 
 so that when the plaintiff proved a claim for ,t'40, and the defendant a counter-claim 
 for i'lU, the defendant, in the absence of any order as to costs, was held entitled 
 to the costs of proving his counter-claim, and of the issues so far as they related 
 thereto, Blake :■. Appleyard, L. R. 3 Ex. D. 19.'). The plaintiff claimed a 
 balance of £114 8s., and the defendant established a counter-claim to the extent of 
 £109 16s., whereupon the Judge directed the jury (as the result of their answers 
 to certain questions submitted to them) to find a verdict for the plaintiff for the 
 balance, £4 128., and no order v/as made as to costs. The direction of the Judge 
 was not (luestioned; the Court refused to alter the findings of the jury (the Judge 
 being unable to do so), for the purpose of giving the defendant costs upon his 
 counter-claim, (Staples j^. Yoang, L. R. 2 Ex. D. 324; and Blake ?'. Appleyard, 
 L. R. 3 Ex. D. 195, considered ;) Potter v. Chambers, L. R. 4 C. P. D. 69. 
 
 _ Costs. — Where the plaintiff's claim .and defendant's counter-claim are both dis- 
 missed with costs the plaintiff is to pay to the defencfant the general costs of the 
 action, and the defendant is to pay to the plaintiff only the amount by which the 
 
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 42 
 
 JUDICATURE ACT. 
 
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 costs have been increased by reason of the counter-claim, Saner v. Bilton, 11 Oh. 
 D. 416. The Taxing Masters, upon a reference to them, concurred in the follow- 
 ing opinion: — "As this practice is introduced by the Judicature Act, this is an 
 entirely new question. It in a long settled practice in Chancery that when a plain- 
 tiff institutes a suit for two objects, and succeeds upon one and fails on the other, 
 the costs are ajoportioned thus : all the pleadings which apply exclusively to one 
 object are considered costs relating to that, and the costs of so much of the plead- 
 ings as is common to both p ' > s pporfioned between the two, and so are the general 
 costs, such as a term fee; . ii- i\..eighington v. Grant, 1 Beav. 228). The mode of 
 apportionment sanctioned i.i x'r '. c U)'> is complicated, i.nd need not be considered. 
 The objectant does not compl»».- : 'iIs case of the mode of apportionment, but of 
 any apportionment being made, L Lad lately to consider this question, and came 
 to the conclusion that the abo- e n.l.' as to apportionment does not apply to this 
 case. This is not a partial fai''/ : or. the part of the plaintiff, but entire failure, 
 and consetiuently there is no set^-i.^d practice upon the point. I however, after much 
 consideration, considered that .vher<^ the plaintiff succeeds in all that he claims, he 
 is, notwithstanding that the defendant succeeds on a counter-claim, entitled to his 
 full costs, except in so far as they are occasioned or increased by the counter-claim, and 
 so if the plaintiff's action is dismissed with costs, the defendant is entitled to full 
 costs against the plaintiff, except such additional costs as are occasioned by the 
 counter-claim. The plaintiff commences litigation, and it seems to me his costs 
 should depend upon his failure or success. The defendant under the power given 
 by the Act, superadds a o^aim of hie own, and I think the additional costs occasioned 
 thereby should abide the event. I consulted the Common Law Masters, who agreed 
 in this view, but it is only a matter of opinion, there having been no decisions. The 
 proceeding is analagous to the old practice of bill and cross-bill, but as these were 
 distinct suits, and full costs allowed in both, there was no apportionment. There 
 were three ways of taking the evidence: First, it might be taken in each suit; 
 Secondly, the evidence might be taken in the one first at issue, and then an order 
 obtained in the other to read it, with such further evidence as might be necessary ; 
 Thirdly, the evidence might, by arrangement or order, be taken in both suits. In 
 the two first cases the proceedings in each suit would be allowed as costs in the suit 
 in which they were taken ; in the third case only there would be an apportionment. 
 The result is, that in my opinion, in the case under consideration, there ought not 
 to be any apportioment, and the objection should be allowed, but being an undecided 
 question, it is for the Court to settle the practice." See also as to costs. Potter v. 
 Chambers, L. 11. 4 C. P. D. 69, and cases there discussed ; Davidson v. Gray, 40 
 L. T. N. S. 192; Cole v. Frith, /d. 851; Halliman v. Price, 27 W. R. 490 ; Mason 
 V. Brentini, L. R. 15 Ch. D. 287 ; Beddall v. Maitland, W. N. (1881) 43 ; Baines 
 V. Bromley, L. R. 6 Q. B., C. P. & Ex. D. 197. 
 
 A claim and a counter-claim were both dismissed with costs. The taxing-master 
 taxed the costs of the claim at £350, and gave £10 10s., as the costs of the counter- 
 claim. ■ The plaintiff took out a summons to review the taxation, on the ground 
 that such of the costs of the claim as w«»re common to both ought to be apportioned. 
 Matins, Y. C, was of apinion that the principle adopted by the taxing-master was 
 right. The costs had not been'increased by the counter-claim, and the plaintiff had 
 not taken in any bill of costs occasioned by the counter-claim. The plaintiff must 
 pay all the costs of the claim, and the £10 10s. allowed by the Master would be 
 deducted. Mason v. Brentini, W. N. (1880) 107; affirmed in appeal, W. N. (1880) 
 144. 
 
 Conveniently disposed of in the pending action. — Under O, XV., R. 3 [b), if, in the 
 opinion of the Court or Judge, a set-off or counter-claim cannot be conveniently 
 disposed of in the pending action, or ought not to be allowed, permission may be 
 refused to the defendant to avail himself thereof, and see 0. XvIII., r. 9. 
 
 Atwood V. Miller, W. N. (1876) 11, was an action for rent, in which the defend- 
 ant set-off the price of butcher's meat delivered, and had tdso a counter-claim for 
 damages as tenant from year to year of the plaintiff, and for specific performance 
 of an agreement to grant a lease. The Master had refused to strike out the counter- 
 claim, and that decision was now appealed against. Lindley, J.: "At first sight it 
 appeared doubtful whether the defendant could conveniently make both these 
 claims together, and I was inclined to think that the claim for specific performance 
 should be postponed, and tried separately. But I do not think ttiat is necessary. I 
 cannot hold that this counter-claim is sufficiently embarrassing to be struck out, 
 and I think if I were to do so, I should be acting against the spirit of the Act." 
 
 Bartholomew v. Rawlings, W. N. (1876) 56, was an action brought to recover the 
 
COUNTER-CLAIM. 
 
 43 
 
 balance of mqney due on the sale of a public-house, it was desired to set up a 
 counter-claim for the return of money paid as deposit on false representations 
 alleged to have lieen made by Rawlings and one Smith ; and for this purpoBO an 
 application had been nuvdo to Master Bennett to join Smith as a co-defendant to 
 the counter-claim, which was refused. That decision was now appealed against. 
 Archib^d, J.: "There is no doubt whatever that a <lefendant is entitled to set up 
 any counter-claim that is not so incongrnous as to be incapable of being conveniently 
 tried with the original claim. I think a claim for the return of deposit money on 
 the ground of fraud may be very conveniently tried in an action for the balance of 
 purchase money on a sale, when the whole defence to the action is on the ground 
 pf fraudulent representation by the agent. I cannot :<ay that these claims are of 
 such an incongruous kind as to be unfit to be tried together. I regret that there may 
 be some delay in the trial of the action, owing to the joinder of Smith, but that 
 cannot be avoided." 
 
 In Naylor i'. Farrer, 26 W. R. 809, Jessel, M. R., said that, in his opinion, 
 under Order XIX., r. 3, (Ont., O. XV., r. 3,) defendant might set up any num- 
 ber of counter-claims. There was no limit laid down in that rule either to their 
 number or nature, but it was left to the discretion of the Court or a Judge to do 
 so, otherwise fifty causes of action of thci most diverse nature might be joined 
 together and set up, and witnesses of all kinds called in support of each. How 
 would it be possible for the Court to try all these in one action? There must be 
 some limit to the character of the claim set up. Suppose, for instance, an act'.on 
 for account brought by a surviving partner against tne widow, who was also the 
 executrix of the other, to wliich the widow set up a counter-claim for damages for 
 breach of promise of marriage, could that be said to be a counter-claim which could 
 be conveniently disposed of in the.pending action? It was impossible. The Judge 
 must exercise the discretion given to him by the Rule, in allowing or rejecting a 
 counter-claim. In the present case, if the counter-claim were allowed, the plaintifiF 
 would have to put in a special reply. The action, as it stood, was for dissolution 
 of partnership. The defendant denied the partnership, that was a simple issue, 
 partnership or no partnership. Then the first two jjaragraphs of the counter-claim 
 were not complained of, but the third went on to an entirely new cause of action. 
 There were, therefore, two claims for remuneration set up by the defendant ; one 
 for the completion of the buildings, and the other for instructing solicitors and 
 expenses in bringing actions ; both were totally unconnected with the partnership, 
 the subject of (the plaintiflf's claim. In his Lordship's opinion they could not be 
 conveniently disposed of as a counter-claim, but were fit subjects for a cross -action. 
 No injustice would be done to the defendant by striking oiit the counter-claim, 
 because his Lordship would not be allowing the plaintiff, as in some cases, to get 
 money from the defendant which he might not be entitled to, and which the 
 defendant might not afford to spare ; for the defendant would be able to get his 
 money in the cross-action before the plaintiff, who would only get an order for 
 taking accounts, could get any order for payment in the present action. 
 
 Nicholson v, Jackson, W. N. (1876) p. 38, was an application to strike out a 
 counter-claim in the action, which was for libel. The alleged libel was con- 
 tained in a circular letter published by the defendant among the shareholders of 
 the Hanne Colliery Company (Limited). The plaintiff was one of the directors of 
 the Company, who were charged in the letter with conspiracy and fraud. The 
 defence was that the communications were privileged and there was a counter-claim 
 for damages for loss sustained in respect of shares bought on false representations. 
 Lindley, J :— " This is one of those cases where it would be very difficult to k«>ep 
 the jury from mixing up the two claims. Order to strike out counter-claim, with- 
 out prejudice to any action the defendant may bring, and on the terms that the 
 plaintiff in this action shall not issue execution on any judgment, he may obtain, 
 without leave of a Court or a Judge, costs in the cause." 
 
 Huggons V. Tweed, L. R. 10 Ch. D. 359 (in appeal). The executors of M., 
 a holder of debentures of a Company to the amount of i,'2,000, commenced an action 
 to have the trusts of a deed, for securing payment of the debentures of the com- 
 
 gany carried into execution. The company delivered a defence and counter-claim. 
 ly the defence they alleged that an amount exceeding t'2,000 was, under the circum- 
 stances mentioned in the counter-claim, due from M. to the company, and claimed a 
 set-off. By the counter-claim they alleged that M. had been a director and promoter 
 of the company, and while filling those characters had joined with other persons in 
 selling an estate to the company at a profit, concealing the fact of his interest in 
 
 
 ^ 
 
 1^ 
 
44 
 
 JUDICATURE ACT. 
 
 the estate, and that he had received more than £2,000 as his share of the profit of 
 the transaction. The counter-claim asked that the executors might be ordered to 
 pay to the company the share of profit which M. had received, and also the remainder 
 of the profit which, in breach of his duty as a director, hti had allowed to be received 
 by the other vendors. The plaintiffs applied to have the counter-claim excluded on 
 the ground that it could not oe conveniently disposed of in the present action, and 
 ought to be tried in an independent proceeding. The application having been 
 refused by Hall, V. C, the plaintifiFs appealed : — Held, that althouGfh, taking Order 
 XIX., Rule 3, (Ont., O. XV., R. 3.) and Order XXII., Rule 9, (5nt. O. XVIII., 
 R. 9,) together, the question whether a counter-claim shall be excluded is not so 
 entirely m the discretion of the Judge of first instance as to preclude an appeal, he 
 has a discretion which v,'ill not be interfered with by the Court of Appeal, except 
 in a very strong case, and that in the present case this discretion had been rightly 
 exercised, see also Quin v. Hessin, 40 L. T. N. S. 70 (ante); Wavell v. National 
 Provincial Bank of England, W. N. (1876) 7; Lee v. Colyer, lb,, 8; Macdonald 
 V. Bode, lb. 23.) 
 
 Form of Order. — Under O. XV., r. 3 (b), the Court or a Jud^e may "refuse 
 permission to the defendant to avail himself " of his counter-claim. Under O. 
 XVIII., r. 9, application may be made " for an order that such counter-claim may 
 be excluded." The form of order given in Chitty's Forms, 125, is: "I do order 
 III t the defendant's counter-claim herein be struck out. " Power is given to the 
 "^ourt to " make such order as shall be just." Acting in pursuance of this power 
 an order was made in Nicholson v. Jackscm, W. N. (1876) p. 38, striking out the 
 counter-claim on the terms that the plaintiff should not issue execution without 
 leave of the Court or a Judge. 
 
 Some issues tried first. — Under O. XXXVI., r. 3, one or more issues may be 
 ordered to be tried before the other issues, b'lt this will be granted only on very 
 special grounds, Emma Silver Mining Go. ,i: Grant, 11 Ch. D. 918; Piercy ?». 
 Young, L. R. 15 Ch. D. 475. 
 
 (5) The said Courts respectively, and every Judge thereof 
 shall recognize and take notice of all equitable estates 
 titles, and rights, and all equitable duties and liabilities 
 appearing incidentally in the course of any cause or 
 matter, in the same manner in which the Court of 
 Chancery would have recognized and taken notice of 
 the same in any suit or proceeding duly instituted 
 therein before the passing of this Act. 
 
 See Imp. Act of 1873, s. 24, sub-s. 4. 
 
 See Hughes v. The ..f etropolitan Railway Company, L. R. 1 C. P. D. 120 ; 
 S. C.i n appeal, L. R. 2 App. Cas. 439, and Williams v. Snowden, W. N. (1880) 124, 
 where, in an ejectment suit, it appeared that the plaintiff would have been entitled 
 to a verdict but for an equitable right in the defendant to specific performance of 
 an agreement made by the plaintiff for a lease of the premises. It was contended 
 that the equitable right should have been set up as a defence or counter-claim, but 
 it was held that under this sub-section effect must be given to the right, ^though 
 not pleaded. 
 
 (6) No cause or proceeding at any time pending in the High 
 Court of Justice, or before the Court of Appeal, shall 
 be restrained by prohibition or injunction ; but every 
 matter of equity on which an injunction against the 
 
 Erosecution of any such cause or proceeding might 
 ave been obtained, if this Act had not passed, either 
 
COUNTER-CLAIM. 
 
 45 
 
 unconditionally or on any terms or conditions, may be 
 relied on by way of defence thereto : 
 Provided always, that nothing in this Act contained 
 shall disable either of the said Courts from directing a 
 stay of proceedings in any cause or matter pending before 
 it if it shall think fit ; and any person, whether a party 
 or not to any such cause or matter, who would have 
 been entitled, if this Act had not passed, to apply to 
 any Court to restrain the prosecution thereof, or who 
 may be entitled to enforce, by attachment or otherwise, 
 any judgment, decree, rule, or order, contrary to 
 which all or any part of the proceedings in such cause 
 or matter may have been taken, shall be at liberty to 
 apply to the said Courts respectively, by motion in a 
 summary way, for a stay of proceedings in such cause 
 or matter, either ge erally, or so far as may be neces- 
 sary for the purposes of justice ; and the Court shall 
 thereupon make such order as shall be just. 
 
 See Imp. Act of 1873, s. 24, sub-s. 6. 
 
 If property, belonging to a person not a party to the suit, had been sequestered 
 or taken poosession of by a Receiver, the remedy, imder the earlier chanceiy prac- 
 tice, was an application to be examined pro interesse siio. For this, the Chancery 
 Orders substituted a motion "for such relief as he (the owner of the property) may 
 think himself entitled to," see G. O. Chy. 398- -401. 
 
 Frivolous and Vexatious Actions. — Actions were brought charging the defendants 
 with conspiring to make, and making, false statements respecting the plaintiff, an 
 officer in the army, to the Commander-in-Chief, whereby the plamtiff was placed 
 on half -pay. Upon application to stay the actions as frivolous and vexatious, and 
 and an abuse of the process of the Court, it was stated in the defendants' affidavits 
 that the actions were for acts done by the defendants in the due course of their 
 duty as members of a military court of inquiry, and this was not denied by the 
 plaintiff :— Held that the actions ought to be stayed, on the ground that Dawkins 
 V. Lord Rokeby (L. K. 7 H. L. 744) was a case directly in point, that an action 
 under such circumstances would not lie, Dawkins v. Prince Edward of Saxe 
 Weimar, Dawkins v. Wynyard, Dawkins v. Stephenson, L. R. 1 Q. B. D. 499. 
 
 See also Edmunds v. The Attorney-General, 47 L. J. N. S. Ch. 345. 
 
 Application in same Diviiion. — A defendant in an action at law, having an equit- 
 able defence, should obtain from the Judge of the Common Law Division leave to 
 plead that defence, and cannot obtain from a Judge of the Chancery Division a 
 direction to stay proceedings in the Common Law Division ; and this prevails 
 whether the action at law was commenced before or after the Judicature Acts came 
 into operation. An action prevailing in one Division will not be stayed by another 
 Division or Judge, unless the defence is on grounds unconnected with the cause of 
 action, Garbutt v. Fawcus, L. R. 1 Ch. D. 155. 
 
 And see Kingchurch v. The People's Garden Company, L. R. 1 C. P. D. 45 ; 
 In re People's Garden Company, L. R. 1 Ch. D. 44. 
 
 Administration suit — Mortgagee proceeding to obtain possession. — C.being executor 
 of L., mortgaged certain hereditaments, which had formed part of the estate of the 
 deceased. The plaintiff, who became mortgagee, afterwards sued to recover pos- 
 session of them from her lessees on the ground of a forfeiture for non-payment of 
 rent. C. obtained leave to defend the action as landlord. A suit had oeen insti- 
 tuted by C. in the Chancery Division to administer the estate of L., and an inquiry 
 had been directed as to the mortgage. An order was obtained by C. staying the 
 proceedings in the action for recovery of the hereditament until the proceedings in 
 
 |HJf,|| 
 
46 
 
 JUDICATURE ACT. 
 
 the Chancery Division should have concluded :— Held that the or-^er was bad and 
 must be set aside, Crowe v. Russell, L. R. 4 C. P. D. 180. 
 
 Interpleader action, —Goods having been taken in execution under Vkfi. fa. against 
 W., the trustee of Mrs. W's. settlement, claimed them as a separate estate of the 
 wife. The sheriff thereupon took out an interpleader summons in the Common 
 rieas Division, upon which an order was made that upon the tnistee paying Iill5 
 into Court within a limited time, the sheriff should withdraw^ but in default of such 
 payment being made, should soil, and pav the proceeds mto Court, and that 
 the parties should proceed to the trial of an issue as to the title to the goods. 
 The money was not paid into Court by the trustee within the time, and 
 the sheriff advertised the goods for sale. Mrs. W. thereupon commenced an 
 action in the Chancery Division to have the trust of the settlement, carried 
 into executi(m, a new trustee appointed, and, in the meantime, for the )point- 
 ment of a receiver. An injunction to restrain the sheriff from selling th . ^oods or 
 remaining in possession of them, was granted by Malins, V. C. : — Held in appeal 
 that this order was a restraining by injunction a proceeding pending in the Cfom- 
 mon Pleas Division, and was inconsistent with the Judicature Act, and must be 
 discharged, Wright v. Redgrave, I<. R. 11 Ch. D. 24. 
 
 Proceedings fending in a foreign Court. — Whether a Court having ample author- 
 ity to decide the matter brought before it, should await the expected adjudication 
 of another tribunal having onlytsimilar authority, is merely a question for the exer- 
 cise of judicial discretion. If there be any want of power in the Court it may be 
 well that the proceedings should be stayed in order that some other Court which 
 has the requisite power may adjudicate. Per T^ord Selbome: — "I am far from 
 saying that there might not be cases in which a proceeding in a foreign Court 
 might be regarded as a satisfactory way of ascertainmg the legal rights of parties ; 
 and the Scotch Courts might very properly desire to ascertain the result of the 
 foreign proceeding before determining the claim brought before themselves. But 
 I can hardly conceive a greater miscarriage of justice than it would be, after a suit 
 had been fought out to the end, if your Lordships were now to turn round upon a 
 point of discretion and say the Court of Session must take into consideration what 
 has been done in the English suit. There was no lack of material in Scotland for 
 the necessary purposes of justice," Phosphate Sewage Company v. Molleaon, L. R. 1 
 App. Ca. 780. 
 
 Default in production. — In an action upon a policy of marine insurance the 
 defendant is not entitled to have the proceedings stayed until the plaintiff has 
 obtained an affidavit of documents from a person who is not a party to the action 
 and is not within the jurisdiction of the Court and is not under the plaintiff's con- 
 trol ; and it is not material that the plaintiff derives his title to the subject matter 
 of insurance through the person from whom the affidavit is sought, Fraser & Co. 
 V. Burrows, L. R. 2 Q. B. D. 024. 
 
 See also Houseman v. Houseman, L. R. 1 Ch, D. 635; Blewitt v. Dowling, 
 W. N. (1875) 202. 
 
 Compromise of action. — A partnership having, in an action brought by the plain- 
 tiff, been by order of the Court dissolved, the plaintiff and defendants signed an 
 agreement of compromise, whereby it was agreed that the plaintiff should be paid 
 a sum of money for his share in the business. The plaintiff subsequently repudi- 
 ated the agreement, and proposed to proceed with his action, alleging that his 
 signature had been obtained by fraud : — Held, on summons taken out by one of the 
 defendants, and supported by the co-defendant that the Court had, under the Imp. 
 Act, 1873, s. 24, s.-ss. 5, 7 (Ont. Jud. Act, sec. 16, sub-ss. C, 8), jurisdiction to 
 order the stay of all further proceedings in the action, Eden v. Naish, L. R. 7 
 Ch. D. 781, and see Scully v. Lord Dundonald, L. R. 8 Ch. D. 658 ; Gilbert v. 
 Endean, L. R. 9 Ch. D. 269. 
 
 In Small v. Union Pennanent Building Society, 6 P. R. 206, it was held that 
 a compromise of a suit having been entered into before answer, the defendant may 
 set up the compromise in his answer, and pray, by way of cross-relief that it be 
 specifically performed ; and if the plaintiff does not diligently proceed with the 
 suit, the defendant is entitled to move to dismiss for want of prosecution. In 
 McAlpine v. Carling, 8 P. R. 171, it was held that a release after action must be 
 pleaded, and that a defendant is not entitled to an order staying proceedings. 
 
 Prohibition — Injunction. — The jurisdiction to (oant prohibition is now conferred 
 by the Judicature Act upon every Judge of the High Court ; but, inasmuch as one 
 
COUNTER-CLAIM. 
 
 47 
 
 of the main objects of the Acts (Judicature Act 1873, s. 24, sub-s. 7 ; Ont. Judica- 
 ture Act, s. 16, 8ub-8. 8) is to enable the Court to decide, if possible, in one pro- 
 ceeding, all the questions in dispute in the same matter and between the same 
 parties ; ai i (Imp. Act 1873, s. i!5, sub-s. 8 ; Ont. Judicature Act, s. 17, sub-s. 8) 
 to grant an injunction in all cases in which it shall appear to the Court "just ana 
 convenient " so to do, the Court may, in any case in which it has power to grant 
 prohibition, grant an injunction to restrain the proceedings in the mferior Court, 
 Hedley v. Bates, L. R. 13 Ch. D. 498. 
 
 A prohibition is a remedy against an encroachment of jurisdiction, issues only 
 from a Superior Court, is granted on the suggestion that the Court to which itlis 
 directed has not the legal cognizance of the cause, and is addressed to the Judge of 
 the inferior Court, as well as to the parties in the cause. An injunction is ad- 
 dressed only to the individual and not to the Court. In issuing the writ a Court 
 of Equity not only does not deny, but in fact admits, the jurisdiction of tl. e 
 ordinary tribunal. The injunction merely controls the individual to whom it U 
 addressed in the n^e he is attempting to make of the judgment of that tribunal pa 
 an instrument of injustice, Eden on Injunction, 3 ; Kerr on Injunction, 15. 
 
 (7) Subject to the aforesaid provisions for giving effect to 
 
 equitable rights and o+,her matters of equity in manner 
 aforesaid, and to the other express provisions of this 
 Act, the said Courts respectively, and every Judge 
 thereof, shall recognize and give effect to all legal 
 claims and demands, and all estates, rights, duties, 
 obligations, and liabilities existing by the Common 
 Law or created by any Statute, in the same manner 
 as the same would have been recognized and given 
 effect to if this act had not passed by any of the Courts 
 whose jurisdiction is vested in the High Court of Jus- 
 tice. 
 
 See Imp. Act of 1873, s. 24., sub-s. 6. 
 
 (8) The High Court of Justice and the Court of Appeal re- 
 
 spectively, in the exercise of the jurisdiction vested in 
 them by this Act in every cause or matter pending 
 before them respectively, shall have power to grant, 
 and shall grant, either absolutely or on such reason- 
 able terms and conditions as to them shall seem just, 
 all such remedies whatsoever as any of the parties 
 thereto may appear to be entitled to in respect of any 
 and every legal or equitable claim properly brought 
 forward by them respectively in such cause or matter ; 
 so that, as far as possible, all matters so in contro- 
 versy between the said parties respectively may be 
 completely and finally determined, and all multiplicity 
 of legal proceedings concerning any of such matters 
 avoided. 
 
 See Imp. Act of 1873, s. 24, sub-s. 7 ; See notes to sub-sec. 4. 
 
 17. Whereas it is expedient to amend and decL re the Law 
 
 1 
 
 
48 
 
 JUDICATURE ACT. 
 
 
 to be hereafter administered iu Ontario as to the matters next 
 hereinafter mentioned : Be it enacted as follows : 
 
 See Imp. Act of 1873, s. 25 ; R. S. O., c. 40, ss. 86, 87 ; c. 49, bs. 4, 5, 21, 23 ; 
 c. 50, as. 131—133. 
 
 (2) No claim of a cestui que trust against his trustee for any 
 
 property held on an express trust, or in respect of any 
 breach of such trust, shall be held to be barred by 
 any Statute of Limitations. 
 
 See Imp. Act of 1873, s. 25, sub-s. 2 ; R. S. O., c. 108, a. 30. 
 
 This and the following sub-sections are to a large extent declaratory of equitable 
 doctrines. 
 
 The R. S. O., c. 108, s. 30, is as follows ;— When any land or rent is vested in a 
 trustee upon any express trust, the right of the cestui que trust, or any person 
 claiming through him to bring a suit against the trustee, or any person claiming 
 through him to recover such land or rent, shall be deemed to have first accrued, 
 according to the meaning of this Act, at and not before the time at which such 
 land or rent has been conveyed to a purchaser for a valuable consideration, and 
 shall then be deemed to have accrued only as against such purchaser and by any 
 person claiming through him. 
 
 The present Statute does not appear to be limited to land as is the Rev. Stat. 
 
 The present clause does not exactly express the law as formerly administered by 
 the Court of Equity. The former law may be shortly stated as follows : "a trust to 
 be within the saving of this principle must be, in the first pla e, direct or express, 
 and secondly, of a nature not cognizable at law, but solely in equity. There is, too, a 
 third qualificaion of the uoctrine, viz., that it applies (at all events in its univer- 
 sality) only between the trustee and his cestui que trust," Banning on Limitations, 
 187 ; see also Tiflfany v. Thompson, 9 Gr. 244 ; Gunn v. Adams, 8 C. L. J. N. S. 
 211 ; Townsend v. Townsend, 1 Bro. C. C. 554. 
 
 (3) An estate for life without impeachment of waste shall 
 
 not confer or be deemed to have conferred upon the 
 tenant for life any legal right to commit waste of the 
 description known as equitable waste, unless an inten- 
 tion to confer such right shall expressly appear by the 
 instrument creating such estate. 
 
 See Imp. Act of 1873, s. 25, sub-s. 3. 
 
 Equitable waste may be defined to be such acts as at law would not be esteemed 
 waste under the circumstances of the case, but which, in the view of a Court of 
 Equity, are so esteemed, from their manifest injury to the inheritance, although 
 they are not inconsistent with the legal rights of the party committing them, 
 Tayjor's Eq. Jur. s. 677. See Micklewait v. Micklewait, 1 D. & J. 504, 524. 
 
 Thus if a tenant for life, without impeachment of waste, should pull down houses 
 or cut down trees planted for ornament or shelter. Vane v. Lord Barnard, 2 Vem. 
 738 ; Packington's case, 3 Atk. 215 ; Bubb v. Yelverton, L. R. 10 Eq. 465 ; Hony- 
 wood V. Honywood, L. R. 18 Eq. 306. 
 
 The presence or absence of a bad motive is immaterial. Turner v. Wright, 2 
 D. F. k J. 234. An account may be had of past waste, Higginbotham v. Haw- 
 kins, L. R. 7 Ch. App. 676. 
 
 The Court considers the excessive use of the legal power incident to an estate 
 unimpeachable of waste to be inequitable and unjust, and therefore controls it ; but 
 it exercises that control with reference to the presumed will and intention of the 
 party by whom the power was created, and not to any fancied notions of its own. 
 Per Sir George Turner, in Marker v. Marker, 9 Ha. 17 ; see also Packington's 
 case, 3 Atk. 215 ; Com. Dig. Chy. D. 11. 
 
RULES OF LAW. 
 
 49 
 
 (4) There shall not, after the commencement of this Act, be 
 any merger by operation of law only of any estate, the 
 beneficial interest in which would not be deemed to be 
 merged or extinguished in equity. • 
 
 See Imp. Act of 1873, s. 25, sub-s. 4. 
 
 The R. S. O., c. 99, sec. 1, is as follows :— Any mortgagee of freehold or lease- 
 hold property, or any asnignee of such mortgagee, may takj and receive from the 
 mortgagor or his assignee a release of the equity of redemption in such property, 
 or may purchase the same under any judgment or decree or execution, without 
 thereby merging the mortgage debt as against any subsequent mortgagee or per- 
 son having a charge on the same property. 
 
 Merger is where a greater estate and a less coincide, and meet in one and the 
 same person in the same right, without any intermediate estate, in which case 
 the less is immediately annihilated, or, in the law phrase, is said to be merged in 
 the greater, or if the fee comes to tenant for years or life, the particular estate is 
 merged in the fee, Wiscut's case, 2 Rep. 60, 61 ; Smith's Real and Personal 
 Property (3rd Ed.), 1150. 
 
 The rule of extinguishment differs only from that of merger in being applicable 
 to a charge or right, instead of a preceding estate. 
 
 Uimn this subject a Court of Equity is not guided by the rules of law. It will 
 sometimes hold a charge extinguished where it would subsist at law, and sometimes 
 preserve it, where at law it would be merged. The question is upon the inten- 
 tion, actual or presumed, of the person in whom the interests are united, see Sir 
 W, Grant in Forbes v. MofiFatt, 18 "Ves. 390 ; Anderson v. Pignet, L. R. 8 Chan. 
 188 ; and see Lord Compton v. Oxenden, 2 Yes. 264 ; Heney v. Low, 9 Gr. 265. 
 
 A question may arise under this sub-sec. whether the word " estate " includes a 
 charge. The equitable doctrine is more frequently applied in determining whether 
 a charge merges in an estate than in cases where two estates meet. 
 
 Sir John B. Robinson, C. J., in Street v. The Commercial Bank (1 Gr. 169) refer- 
 ring to Forbes 2^. Moffatt(18 Yes. 384) thus refers to the law of merger, as it existed 
 prior to the above statute : — " The principle settled by this judgment is, that where 
 one having a charge acquires the legal estate, his charge sinks or not, according as 
 it appears to be for his interest or otherwise that it should subsist. If he manifests 
 an intention th%t it should sink it does sink, if not, and he is indifferent, then it 
 also sinks ; if no intention is shewn, and it may be in his favour to prevent a prior 
 mortgagee from coming in^ it will not be treated as being sunk." This language 
 was adopted by Draper, C. J., in Hart v, McQuesten (22 Gr. at p. 137). Burton, 
 J., held that the Statute was not merely declaratory of the existing law. He 
 said:— "As remarked by Mowat, Y. C, m Finlayson v. Mills (11 Gr. 218) the ob- 
 ject of the Legislature was to prevent a merger of the debt by the operation 
 of any technical rule where such a result would contravene the intention of the 
 parties. It is still in the power of parties to make any arrangement they 
 may think proper, but I apprehend that the effect of the Statute is to shift tha 
 onus of proof, and to throw upon a subsequent incumbrancer, desirous of availing 
 himself of a merger, the necessity of proving it," at pages 143, 4. ; see also Elliott v. 
 Jayne, 11 Gr. 412 ; Barker v. Eccles, 17 Gr. 631. 
 
 The latest case upon the subject is The Xorth of Scotland Mortgage Com- 
 pany V. German (31 U. C. C. P. 349). In that case, in response to a notice 
 from the plaintiffs the mortgagees, of an instalment being due on the defend- 
 ant's mortgage, the defendant's solicitor wrote that as defendant was unable 
 to pay the claim, or redeem, and to save plaintiffs' costs, he would give them a con- 
 veyance of his equity of redemption. The plaintiffs thereupon conferred with H.. 
 their local agent and valuator, who advised them to take a deed, which they agrera 
 to do, but only to enable them to sell the property, and defendant was to have any 
 surplus over the mortgage debt, but that tney would not release 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 same 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 would send a discharge, though 
 without any authority from the plaintiffs to do so, and defendant stated that he 
 signed on this understanding :— Held (Gait, J. dissenting) that there was no 
 
 « 
 
 !. 
 
 J 
 
 ill 
 
50 
 
 JUDICATURE ACT. 
 
 meif^r of the mortgage debt, but the defendant still remained liaMe therefor, the 
 equity of redemption having been released only to enable the plaintiffs more conveni* 
 ently to sell. Per Wilson, C. J. : The accountability for tne surplus of the pro- 
 ceeds of the sale, shewed the true nature of the transaction. Per Osier, J. : The 
 merger of the mortgage was a question of intention, such intention being a matter 
 of fact. Per Gait, J. : When the plaintiffs accepted from defendant a release of 
 his equity of redemption without any reference to or men^'ion of the mortgage 
 debt, they thereby, as to interest upon one security, discharged the defendant, and 
 the charge became merged, being reduced to the rate recoverable upon a collateral 
 security, see St. John v. Bykert, 4 App. B. 213. 
 
 Estates tail are not subject to merger ; so that a man may have at the same time, 
 and in his own right both an estate tail, and the immediate reversion in fee in the 
 same land ; because the object of the Statute De Donis being to render estates 
 inalienable, if thev were allowed to merge in the fee simple, tenants in tail might 
 have destroyed ttiem by purchasing the fee simple, Smith's Real and Personal 
 Property, 1150. 
 
 (5) A mortgagor entitled for the time being to the posses- 
 
 sion or receipt of the rents and profits of any land as to 
 which no notice of his intention to take possession or 
 to enter into the receipt of the rents and profits thereof 
 shall have been given by the mortgagee, may sue for 
 such possession, or sue or distrain for the recovery of 
 such rents or profits, or to prevent or recover damages 
 in respect of any trespass or other wrong relative 
 thereto, in his own name only, unless the cause of 
 action arises upon a lease or other contract made by 
 him jointly with pny other person, and in that case 
 he may sue or distrain jointly with such other person. 
 
 See Imp. Act of 1873, s. 25, sub-s. 5. 
 
 By this sub-section the mortgagor is treated as the owner of the land, and the 
 mortgagee as having merely a charge thereon, until he has ^iven notice to take 
 possession, see before this Act, Trent v. Hunt, 17 Jur. 899 ; Gibbs v. Oruikshank, 
 L. B. 8 C. P. 454, aud notes to Keech v. Hall, 1 Sm. L. C. (6th Ed.) p. 523. 
 
 If loss arises to the mortgage, where the mortgagee gives notice to tenants 
 and refuses to proceed, the loss will fall on the mortgt^ee, Heales v. McMurray, 
 23 Beav. 401. 
 
 As to circumstances under which the mortgagor will be entitled to possession of 
 the mortgaged property, notwithstanding the absenca of a redemise clause, see 
 Superior Savings and Loan Society v. Lucas, 44 U. C. R. 106. 
 
 (6) In case of an assignment of a debt or other chose in 
 
 action, if the debtor, trustee, or other person liable in 
 respect of such debt or chose in action shall have had 
 notice that such assignment is disputed by the assignor 
 or any one claiming under him, orof any other oppos- 
 # ing or conflicting claims to such debt or chose in 
 
 action, he shall be entitled, if he think fit, to call upon 
 the several persons making claim thereto to interplead 
 concerning the same, or he may, if he think fit, pay 
 the same into the High Court of Justice under and in 
 conformity with the provisions of law for the relief of 
 trustees, 
 
tter 
 e of 
 asre 
 and 
 eral 
 
 RULES OF LAW. 
 
 51 
 
 See Imp. Act of 1873, a. 26, sub-B. 6. 
 
 See R. S. 0., c. 116, aa. 6, 12, aa to aaaignment of chuaea in action. 
 
 It is no objection to an aaaignment, in ec^uity, of a claim againat a third person > 
 that the work upon which the claim ia to ariae haa yet to be performed. A printer, 
 being about to execute a contract of printing for a cuatomer, applied to a paper 
 maker for a supply of paper, but which he refused to aupply unleaa secured there- 
 for ; thereupon a memorandum was signed, with the printer'a name, by one, with 
 the cognizance of the other, of two persona having the general management uf the 
 printer'a business, agreeing to hand over to the manufacturer a draft upon their 
 customer for the amount of the account, payable at three months from the date of 
 completing the work :— Held, that audi document was a sufficient assignment of 
 the claim in equity, and that the giving thereof was within the scope of the general 
 authority of the managers of the Duainesa. The cuatomer, after having been noti- 
 
 fied of tnis arrangement, paid the amount to the printer : — Held, that such pay- 
 ment was made in hia own wrong ; and he was ordered to pay the amount to the 
 nlaintiif, the assignee, Buntin v. fieorgen, 19 Gr. 167. A debt or other chose 
 m action may be assigned in equity, without any concurrence on the part of the 
 debtor. A railway contractor gave his bankera a letter directing the railwav 
 company to pass the cheques, which might become due to him, "to his account with 
 the bank ":- -Held, that this was not an equitable assignment, but that it would 
 have been if it had directed the cheques to be passed to the bank. Bell v. The 
 London and North -Western Railway Company, 15 Beav. 548 ; see alao Reifien- 
 stein V. Hooper, 36 U. C. R. 295 ; Cole v. Bank of Montreal, 39 U. C. R. 54 ; 
 Dawson v. Graham, 41 U. C. R. 532 ; Wood v. McAlpine, 1 App. R. 234 ; Howell 
 V. McFarland, 2 App. R. 31 ; Mitchell v. Goodall, 4411. C. R. 398 ; 5 App. R. 164 ; 
 Ke Haisley, 44 U. C. R. 345 ; Patterson v. Kingsley, 25 Gr. 425 ; McKenzie v. 
 Montreal and City of Ottawa Junction Railway Company, 27 U. C. C. P. 224 ; 29 
 U. 0. C. P. 333 ; Lamb v. Sutherland, Lamb v. Allen, 37 tj. 0. R. 143 ; Caldwell v. 
 The Merchant's Bank, 26 U. C. C. P. 294 ; Coates v. Lloyd, 3 U. C. R. 51 ; Clax- 
 ton V. Gilbert, 24 U. C. C. P. 500 ; Wilcox v. Pillow, 28 U. C. C. P. 100 ; Greet v. 
 Citizen's Insurance Company, 27 Gr. 121 ; Ferguson v. Elliott, 12 L. J. N. S. 249 ; 
 Bain r. McCarty. 13 L. J. iJ. S. 298 ; O'Connor v. McNamee, 28 U. C. C. P. 141 ; 
 The Postmaster General v. Robertson, 41 U. C. R. 375 ; Harris v. Meyers, 2 Ch. 
 Ch. R. 121 ; Cogswell v. Sugden, 24 Gr. 474. 
 
 For the Trustee Acts see post, 
 
 (7) Stipulations in contracts, as to time or otherwise, which 
 
 would not before the passing of this Act have been 
 deemed to be or to have become of the essence of such 
 contracts in a Court of Equity, shall receive in all 
 Courts the same construction and effect as they 
 would have heretofore received in equity. 
 
 See Imp. Act of 1873, a. 25, aub-s. 7. 
 
 To render, in equity, time of the essence of a contract it must be clearly and 
 expressly stipulated that it shall be so ; it is not enough that a time is mentioned 
 during which or before which something shall be done, Heame v. Tenant, 13 Yes. 
 287 ; but where time is not originally of the essence of the contract, if either party 
 delays, the other may, by reasonable notice, make it so, Walter v. Jeffries, 1 Ha. 
 348 ; Nott v. Riccard, 22 Beav. 307. A Court of Equity will relieve against, and 
 enforce, specific performance, notwithstanding a failure to keep the dates assigned 
 by the contract, either for completion or for the steps towards completion, if it can 
 do justice between the parties, and if there is nothmg in the express stipulations 
 between the parties, the nature of the propertv or the surrounding circumstances 
 which would make it ii aouitable to interfere with, and modify,the legal right. That 
 is what ia meant, and all that ia meant, when it ia aaid that in equity time ia not 
 of the easence of the contract, Roberts v. Berry, 3D. M. & G. 284 ; and see TiUey 
 V. Thomas, L. R. 3 Chan. App. 66; Wells v. Maxwell, 32 Beav. 550; on App. 9 
 Jur. N. S. 1021; HipweU v. Knight, 1 Y. & C. 415. 
 
 (8) A mandamus or an injunction may be granted or a 
 
 1 
 
 " 
 
 1 
 
 
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 I 
 
 
 ■■■ 
 
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 i 
 
 i r 
 
 , a • ■;• ' a ■• « 
 
5t 
 
 JUDICATURE ACT. 
 
 fe 
 
 i 
 
 ,,'j 
 
 receiver appointed by an interlocutory order of the 
 Court, in all cases in which it shall appear to the Court 
 to be just or convenient that such order should h?i 
 made ; and any such order may be made either uncon. 
 ditionally, or upon such terms and conditions as the 
 Court shall think just ; and if an injunction is asked, 
 either before, or at, or after the hearing of any cause 
 or matter, to prevent any threatened or apprehended 
 waste or trespass, such injunction may be granted, if 
 the Court shall think fit, whether the person against 
 whom such injunction is sought is or is not in posses- 
 sion under any claim of title or otherwise, or (if out 
 of possession) does or does not claim a right to do the 
 act sought to be restrained under any colour of title ; 
 and whether the estates claimed by both or by either 
 of the parties are legal or equitable. 
 
 See Imp. Act of 1873, b. 25, sub-a. 8; E. S. O., o. 40, b. 39 ; o. 52. 
 
 Mandamus. — Under R. S. O, c. 52, s. 4 ei sea, will be found the practice hereto- 
 fore existing as to mandamuH in actions other than replevin and ejectment. Sec. 8 
 provides that the writ of mandamus, so issued as aforesaid, shall have the same 
 force and effect as a peremptory writ of mandamus, and in case of disobedience, may 
 be enforced by attacnment. Sec. 10 provides as follows : — Nothing in the prece- 
 ding provisiona of this Act contained siiall take away the jurisdiction of either of the 
 Superior Courts of Law to grant writs of mandamus ; nor shall any writ of man- 
 damus, issued out of such Court, be invalid by reason of the right of the prosecu- 
 tor to proceed by action for mandamus under this Act, but the preceding provis- 
 ions of this Act, so far as they are applicable, shall apply to the pleadings and pro- 
 ceedings upon a prerogative writ of mandamus issued by either oi the said Sui)erior 
 Courts of Law. The subsequent sections prescribe the practice where the writ is ob- 
 tainable upon motion. The whole subject was much discussed in In Ife The Strat- 
 ford and Huron Railway Company and The Corporation of the County of Perth, 
 38 U. C. R. 112. In that case Burton, J. said (p. 143) :— " The inclination of the 
 Courts of late years has been to enlarge the remedy by mandamus, and the objec- 
 tion, which at one time existed, to granting it, if the applicant had any other 
 remedy, is to a very great extent removed by the facility now afforded for the ex- 
 amination of the parties and their witnesses before the Court or the Judge applied 
 to, and from the fact that a mode now exists of revising the proceeding by appeal, 
 both by this Court and the Supreme Court. It is laid down m Mr. High's valuable 
 work, that the object of a mandamus being to enforce specific relief, it foUowa that 
 it is the inadequacy rather than the absence of other legal remedies, coupled with 
 the danger of a failure of justice, without the aid of a mandamus, which must 
 usually determine the propriety of this species of relief. . . . The existence of 
 possible equitable remedies does not affect the jurisdiction of Courts of Law in 
 attaining the same end by writ of mandamus, and the Act of 1873 was intended 
 to do away with the old system of driving a suitor from one Court to seek redress 
 in another, where, perhaps, he might again be met with the objection, that he 
 should seek his remedy in the Court which had already declined to hear him. The 
 language of that Act is, that the Courts of law and equity shall be, as far aa possi- 
 ble, auxiliary to one another respectively, for the more speedy, convenient, and 
 inexpensive administration of justice in every case. I think, therefore, that, aa the 
 applicanta have aelected a Common Law Cfourt as the forum to adjudicate upon 
 the qiieationa in diapute, they ahould be entitled to aucceed, if they have disclosed 
 a case which would entitle them to relief in a Court of Equity ;" and Moss, •! . said 
 (p. 155) :— "It is commonly said that the granting or withholding of this high 
 prerogative writ is a matter for the discretion of the Court. But I apprehend that 
 this discretion — at leasl. in cases resembling that now under review — should be 
 exercised according to some fixed and general rulea. There ia no sound reason for 
 
Tl 
 
 MANDAMUS. 
 
 58 
 
 leaving disoretion in tuoh caaes to be exercised on arbitrary principles, or according 
 to the ideas of natural justice of the particular Judge or Court. There is no 
 just cause why, upon an application for a mandamus, the door should be 
 opened to the inconveniences which attend jus vagum et incertum. I sin uM 
 not think it cause of wonder, that the most patriotic of suitors failed tc 
 recognize the perfection of reason in the law of his country, if he was refused tv 
 manifestly efficacious remedy upon the ground that the Court was not satisfied tliat 
 he could not obtain redress by the ortlinary forms of legal procedure. T>>«» idea 
 that a peculiarly wide field for tlie exercise of judicial discretion was ope upon 
 an application for the writ of mandamus was no doubt founded upon its original 
 prerogative character. Whil<'. it was deemed an emanation from the Hovereign 9,t 
 the fountain of justice, wlto vv.u in legal fiction still personally presiding /// cut in, 
 this theory was natural and intelligible. The Court was expressing the will (^^ the 
 sovereign and extiMding one of his attributes, rather than administering the general 
 law, to which every subject was entitled to appeal as of right. But, in my opinion, 
 the writ is not invested with any prerogative character in this Province. _ It is not 
 attached to any particular Court, but may issue out of either of the Superior Courts 
 of Common Law. It is true that in the preamble to the Act, (35 Vic, c. 14, O.) the 
 writ is termed 'the prerogative writ of mandamus,' and the avowed objec*: of the en- 
 actment is to prevent the injustice done in many cases by the delay in its issue, and to 
 devise a more speedy and summary method for the issue of the same ; but it would 
 be giving extraordinary force to the use of this appellation for the writ in the pre- 
 amble to make it countervail the considerations to which I have alluded. It was 
 an accustomed and familiar description of the writ, which the author of the statute 
 naturally enough employed, and the Legislature adopted, without any possible 
 intention that its use shouhl influence the question as to what principles should 
 govern judicial action with respect to the writ. My own opinion is, that it 
 would be found a safe and convenient rule for a Judge to act upon principles 
 similar to those which govern a Court of Equity in a suit for specific perform- 
 ance. That Court refused to interfere where there was an adequate legal 
 remedy, and while it treated the jurisdiction as discretionary, the exercise of 
 that discretion was limited and controlled by defined and well settled rules. 
 The authorities establish that where there is a clear, adequate, and appro- 
 priate legal remedy giving the aggrieved party perfect redress, the writ should not 
 issue, so that this far the analogy is complete between applications for the writ 
 under suits for specific performance, or specific delivery. Lord Mansfield 
 states that the writ was introduced to prevent disorder from failure of justice, 
 and that it ought to be used upon all occasions where the law has established 
 no specific remec^, and where in justice and good government there ought to 
 be one (Rex v. Barker, .3 Burr. 1265). No doubt, as the language of Lord 
 Mansfield suggests, the class of cases in which it was originally resorted to 
 was narrow, but the want of a specific remedy at common law is the special fea- 
 ture which led to its introduction, and contributed to that development of its scope 
 which may be plainly traced in its history. Blackstone (.3rd Ed., Vol. 3, p. 116) 
 says :— ' It issues in all cases where the party has a right to have anjrthing done, 
 and has no other specific means of compelling its performance. ' It is interesting to 
 read in this connection the observations of Lord Redesdale in Harnett v. Yielding 
 (2 Sch. & L. 549, 552) and compare their resemblance. That great master of the 
 history and practice of the Court of Chancery says that unquestionably the original 
 foundati(m of the jurisdiction exercised in decreeing specific performances was 
 simply this, that damages at law would not give the party the compensation to 
 which he was entitled, that is would not put him in a situation as beneficial to him 
 as if the agreement were specifically performed. 
 
 "Originated, as these two branches of jurisdiction were, to supply similar defects 
 in the ordinary administration of the jurisprudence of the country, it would seem 
 fitting to pay regard to the rules of equity — at least in cases where there is a con- 
 venient remedy in equity. Especially must this be appropriate since the decision 
 can be reviewed. Take the present application as an illusf tion. It will not be 
 doubted that a suit in equity might have been instituted to compel the delivery of 
 these debentures. From a decree of the Court of Chancery an appeal might have 
 been brought to this Court and ultimately to the Supreme Court. It surely would 
 be opposed to the whole spirit of recent legislative efforts to give a party the com- 
 plete redress to which he may be entitled, without driving him into another Court, 
 if it could be contended with success that the decision in appeal should depend upon 
 the forum in which proceedings were initiated. There is no reason to suppose that 
 the materials before this Court would be at all different if the appeal were from a 
 decree." 
 
 'i ^ ;f 
 
 
H 
 
 JUDICATURE ACT. 
 
 In /ie Hamilton and North Western Railway Company v. The Corporation o 
 the County of Halton, 39 U. C. R. 93, Harrison, C. J. said (p. 108) :— " The well 
 known rule is never to interfere by writ of mandamus, unless the party making 
 the application has no other specific legal remedy. (Rex v. Barker, 3 Burr. 1265 ; 
 Rex. V. Windham, Cowp. 377 ; Rex v. Bishop of Chester, 1 T. R. 390 ; Rex v. 
 Bristol Dock Company, 12 East 429 ; Rex v. St. Catharines Dock Company, 4 
 B. & Ad. 360, 363.) It is argued by Mr. Osier that this means a specific legal 
 remedy at iaw, and that a specific remedy in equity is no ground for refusing a writ 
 of mandamus. The contention is opposed to the viow expressed by Mr. Justice 
 Gwynne in the Wawanosh case (36 U. C. R. 93), where he said (p. 100) : — 'The 
 rights of the railway company to have debentures, whatever these rights may 
 be, . . appear to me to depend upon matters of contract, and the points urgeu 
 before me in opposition to the rights of the railway company, appear to me to be 
 of such a nature that I should not determine them upon an application for a man- 
 damus, which writ should not be issued for the purpose of adjudicating thereunder 
 upon rights arising out of contract, where the parties have an ample remedy, and 
 much more suitable to be pursued by bill in equity.'' It is to be observed that the 
 contract in the Wawanosh case, as here, was only signed by the railway company, 
 and not by the municipality. The decisions in the United States are m 
 favour of Mr. Osier's contention. It was held by the Supreme Court of 
 Michigan, in The People v. State Treasurer, 24 Mich. 468, that the existence 
 of possible equitable remedies does not affect the jurisdiction of Courts of 
 law by writ of mandamus, for they (such remedies) may be regarded in 
 determining the exercise of discretion in allowing the writ, but they cannot 
 affect the jurisdiction." (Per Campbell, J., Ib.,_ 478.) Mr. Justice Nelson, of 
 the Supreme Court of New York, in an earlier case, The People v. Mayor 
 of New York, 10 Wend. 395, 396, said : — 'It is contended that a mandamus 
 is not the appropriate remedy in this case. The proposition is, I believe, 
 universally true that the writ of mandamus will not lie in any case where another 
 legal remedy exists, and it is used only to prevent a failure of justice. By legal 
 remedy is meant a remedy at law, and though the party might seek redress in 
 Chancery, that of itself is not conclusive objection to the application ; that may 
 and should influence the Court in the exercise of the discretion which they possess 
 in granting the writ under the facts and circumstances of the particular case, but 
 does not affect its right or jurisdiction.' In Commonwealth v. the Commissioners 
 of Alleghany County, 32 Penn. St. 218, 223, Mr. Justice W^oodward, of the 
 Supreme Court of Pennsylvania, said :— 'I need not consider whether he (the 
 appellant) had any remecfy in eqiuty, for according to the best authorities, both 
 English and American, the existence of an equitable remedy is not a ground for 
 refusing mandamus.' (See further Hardcastle r. Maryland and Delaware Railway 
 Company, 32 Md. 32 ; People v. City of Chicago, 53 111. 424.) The broad ground 
 on which the writ 's granted or refused is stated in Rex v. Windham, Cowp. 377, 
 378, by Lord Mansfield in referring to the argument of Mr. Kenyon, where Lord 
 Mansfield said :— ' Mr. Kenyon has said very truly, that where there is no other 
 specific legal remedy to attain the ends of justice, the course must be by manda- 
 mus, which is a prerogative writ, and the very form of it shews its object to be to 
 prevent a defect of justice.' (See further Rex v. The Severn and Wye Railway 
 Company, 2 B. & Aid. 646 ; Marbury v, Madison, 1 Cranch, 49, 137 ; Kindull v. 
 The United States, 12 Peters 524, 613 ; Decatur v. The Secretary of the Navy, 13 
 Peters 512 ; Brasheur v. The Secretary of the Navy, 6 How. 92 ; United States v. 
 Seaman, 17 How. 225, 228. ) In Regina v. Garland et al., L. R. 5 Q. B. 269, 272, Cock- 
 bum, C. J. , said : — ' I rest the refusal of the writ entirely on the special circumstances 
 of the case, and on the ground that in the exercise of that discretion which we have to 
 grant or refuse the extraordinary process of the Court, we ought to refuse it in the 
 present case. ' (See further NichoU v. Allen, 1 B. & S. 916, 934 ; Regina v. The Parish 
 of St. Nicholas-without, 10 Jr. L. R. 113. ) The prerogative writ should not issue 
 merely because the party applying for it would be otherwise remediless. The 
 granting or refufing of the writ, and whether the writ shall be absolute or only 
 nisi, must in each particular case rest in the sound discretion of the Court. (Peo- 
 ple V. Dawling, 55 Barb. N.Y. 197; ex patte Garland, 42 Ala. 559.) In a case 
 mvolving numerous questions of law and fact, and where acts of parties connected 
 with it may be valid or void, depending on circumstances which rest on parol 
 proof, it is not usual to grant the writ. United States v. Commissioner, 5 Wall. 
 663. The conclusion which I draw from the authorities is the same as that of Mr. 
 High in his work on Extraordinary Legal Remedies, Ch. 1, viz.: that it is the 
 inMequacy and not the mere absence of ijl other legal remedies, coupled with the 
 
1l-1?l 
 
 MANDAMUS — INJUNCTIONS. 
 
 55 
 
 danger of a failure of justice without it, that must usually determine the propriety 
 oftoe exercise of a discretion in granting or refusing the prerogative writ of man- 
 damus. And I agree with Mr. Justice Gwynne in the Wawanosh case in thinking 
 that the remedy by the prerogative writ of mandamus ig not an appropriate remedy 
 for the enforcement of rights arising out of contract. See further Benson v. Paull, 
 6E. & B. 273; Norris v. The Irish Land Company, 8 E. & B, 512; Bush, et al., 
 V. Beaven, 1 H. & C. 500; The State v. Zaner villa Turnpike Company, 16 Ohio 
 St. 308. While I am satisfied of the power of the Court to issue a writ of manda- 
 mus in the case now before us, I am not satisfied that the case under all the cir- 
 cumstances is one proper for the present exercise of judicial discretion in favour of 
 granting the writ." 
 
 As to the effect of this new provision, Mr. Arthur Wilson (p. 29) states his view as 
 follows: — " A mandamus may be granted/// all cases in which it shall appear to 
 the Court to be just or convenient that such order should be made. It may be said, 
 on the one hand, that these words cannot be intended merely to give to all divisions 
 such powers for the specific enforcement of rights as have hitherto been exercised 
 by any of the Courts, for this has been already fully provided for by s. Ki (Ont. 
 Judicature Act, s. 9), and s. 24, sub-s. 7 (Ont. Judicature Act, s. 16, sub.-s. 8). 
 And, moreover, the present section purports to deal not merely with procedure but 
 with rules of law. On the other hand, it can hardly be supposed that the Legisla- 
 ture intended by these few words to give power to enforce specifically all rights and 
 duties whatever without regard to the doctrines previously well settled. Probably 
 the true view is, that mandamus is to be understood strictly in the sense in which 
 it has been used in the Common Law Courts ; that the subject matters, the classes 
 of rights, to which it is applicable, are unchanged ; and that the effect of the new 
 provision is first, to give to the Court a very wide discretion as to the issue of the 
 writ ; and, secondly, to allow it to be issued upon an interlocutory application in- 
 stead of its necessarily being claimed upon the writ and L j- pleadings, without, in 
 fact, an action of mandamus being brought within the meaning of the C. L. P. 
 Act. See, however, as to indorsing the claim on the writ, Coleboume v. Coleboume, 
 L. R. 1 Ch. D. 090." 
 
 Injunctions. — The power of the Common Law Courts as to injunctions was based 
 upon R. S. 0. , c. 52, s. 30. It was as follows :— " The plaintiff may at any time after 
 the commencement of any action, and whether before or after judgment, apply ex 
 parte or otherwise, to the Court or a Judge for a writ of injunction to restrain the de- 
 fendant in such action from the repetition or continuance of any breach of contract 
 or wrongful act complained of in the action, or from the commission of any breach 
 of contract or injury of a like kind, arising out of the same contract or relating to 
 the same property or right ; and such writ may be granted or denied by the Court 
 or Judge upon such terms as to the duration of the writ, keeping an account, 
 giving security, or otherwise, as to such Court or Judge seems reasonable and just ; 
 and in case of disobedience, such writ may be enforced by attachment by the Court, 
 or, when such Court is not sitting, by a Judge." 
 
 It would be impossible in this place to give any adequate account of the exer- 
 cise by the Court of Chancery of its jurisdiction with respect to injunctions. It 
 may suffice to point out that tne difficulty as to granting injunctions in cases of 
 trespass where the plaintiff was not in possession (as to which see Stanford v. 
 Hurlstone, L. R. 9 Ch. App. 116) seems to be entirely removed by the present 
 Act. 
 
 The principle upon which the Court of Chancery acted in cases of interlocutory 
 injunctions is laid down in Cory v. The Yarmouth and Norwich Railway Company, 
 3 Hare, 593 : — " If the Court is clearly against the \ .intiff it may refuse the in- 
 junction. ... But, on the other hand, if the Court is clearly with him, the 
 Court may, in the exercise of its discretio'i grant the injunction in the first 
 instance. Supposing the question of the legal right to be one on which the 
 Court is not prepared to express an opinion, tl.e Court is generally governed by the 
 consideration of the convenience or inconvenience on the one side or on the other. 
 If giving to one party the power of doing the acts complained of would be attended 
 with irreparable or very serious mischief to the other, the injunction is more com- 
 monly granted ; but if, on the other hand, there be a balance of inconvenience, the 
 Court will generally leave the parties in the situation in which they are until the 
 legal right shall have been established. This exposition of the law was approved 
 of in McLaren v, Ctddwell, 5 App. Rep. .'358. 
 
 An injunction, to restrain a landlord from exercising the legal right of distress, 
 will be granted only " upon such terms and conditions as the Court shall think 
 
 r 
 
 \ 
 
 f 
 
66 
 
 JUDICATURE ACT. 
 
 just," under the Judicatwe Act, 1873, s. 25, sab-a. 8, (Ont. Judicature Act, a. 17, 
 8ub-8. 8). The terms and conditions which the Court thought junt and imposed 
 on tenants, who sought to restrain their landlord from distraining on certain rent 
 until the determination ^f an action brought by them against him, to try his right 
 to the rent, were that an injunction should be granted for a fortnight, and continued 
 only if the rent was in the meantime paid into Court, Shaw v. Earl of Jersey, L. 
 R. 4 C. P. D. 359. The jurisdiction to grant prohibition is now conferred by the 
 Judicature Acts upon every Judge of the High Court, but, inasmuch as one of the 
 main objects of the Acts (Judicature Act, 1873, s. 24, sub-s. 7 ; Ont. Judicature Act, 
 B. 16, sub-s. 8,) is to enable the Court to decide, if possible in one proceeding, all 
 the questions in dispute in the same matter and between the same parties, and 
 (Judicature Act, 1873, s. 25, sub-s. 8,) to grant an injunction in all cases in which 
 it shall appear to the Court " just and convenient " so to do, the Court may, in any 
 case in wnich it has power to grant prohibition, grant an injunction to restrain the 
 proceedings in the inferior Court, Hedley v. Bates, L. R. 13 Ch. D. 498. This 
 section of the Act has not altered the principles on which the Court acts in granting 
 injunctions, Craskin v. Ball, L. R. 13 Ch. U. 324. The extensive jurisdiction of 
 granting injunctions originally given to the Common Law Courts by the Common 
 Law Procedure Act, is now vested, by virtue of the Judicature Act, in the High 
 Court of Justice. All acts, therefore, which a Common Law Court, or a Court of 
 Equity only, could formerly restrain by injunction, can now be restrained by the 
 High Court. The jurisdiction of granting injunctions is thus vested in the High 
 Court in any case in which it is right or just to do so, having regard to s' otled legal 
 reasons or principles. The Court will restrain an arbitrator by injunction from 
 acting in any case in which he is, in the opinion of the Court, unfit or incompetent 
 to act, Beddow v. Beddow, L. R. 9 Ch. D. 89, and see also Thorley's Cattle Food 
 Company v. Massaw, L. R. 6 Ch, D. 582. In Cooper v. Whittingham, 43 L. T. N. 
 S. p. 16, Jessel, M. R., in referring to the above sub-section, said : ' ' This section 
 may be said to be a general supplement to all Acts of Parliament. " But see Thomas 
 V. Williams, 43 L. T. N. S. 91 ; L. R. 14 Ch. D. 864. The plaintiff, an alderman 
 of a borough, made a composition with his creditors, but executed no composition 
 deed ; nor were any composition proceedings taken under the Debtors' Act, 1869. 
 He had, however, executed a bill of sale, duly registered, to a person not a creditor, 
 to secure a sum of money advanced by him to meet the amount of the composition. 
 A meeting of the corporation of the borough having been summoned by notice for 
 the purpose of declaring the office held by the plaintiff void under the Municipal 
 Corporation Act 1835 (5 & 6 Will. 4 c. 76), s. 52, and the Debtors' Act, 1869, s. 
 21, and electing a successor : — An injunction was granted, at the instance of the 
 plaintiff, restraining the corporation from proceeding under their notice, on the 
 ground: (1) That, having regard to the express words of the above sections, the 
 plaintiff had not become disqualified from nolding office ; (2) That under section 
 25, sub-s. 8, of the Judicature Act, 1873, the Court had no jurisdiction to grant the 
 injuction ; and (3) That, having regard to section 34 of the same Act, the action, 
 which claimed the injunction only, had been properly brought in the Chancery 
 Division, Aslatt v. Corporation oi Southampton, L. R. 16 Ch. D. 143; and see 
 Meams v. Petrolia, 28 Gr. 98. 
 
 Injunctions— Costs. — Where the action could be determined upon an interlocutory 
 motion for injunction it is the plaintiff's duty to make such application, and if he 
 goi^s down to examination of witnesses and hearing he may be refused the ad- 
 ditional costs, Baker v. Wood, W. N. (1881) 7. 
 
 Receiyerst—The Common Law Courts now, for the first time, obtain the power of 
 appointing receivers. The jurisdiction in Chancery is of frequent exercise, particu- 
 larly in suits against executors and trustees, Richards v. Parkins, 3 Y. & C. 299 ; Brodie 
 V. Barry, 3 Mer. 695 ; Wilson v. Wilson, 2 Keen, 249 ; Pritchard v. Fleetwood, 1 
 Mer. 54 ; Middleton v. Dodswell, 13 Ves. 266 ; Lord v. Purchase, 17 Beav. 171 ; 
 in re H's estate, L. R. 1 Ch. D. 276 ; Vernon v. Kinsie, 2 U. C. R. O. S., 40 ; 
 Sanders v. Christie, 1 Or. 137 ; Meacham v. Draper, 2 Gr. 316 ; Harrold v. Wallis, 
 9 Gr. 443 ; in partnership cases Const v. Harris, T. & R. 496, 517 ; Goodman v, 
 Whitcomb, 1 J. & W. 589 ; Fairburn v. Pearson, 2 Mac. & G. 144 : Clegg v. 
 Foshwick, 1 Mac. & G. 294 ; Sargant v. Read, L. R. 1 Ch. D. 600 ; Prentiss v. 
 Brennan, 1 Gr. 371 ; Bilton v. Blakely, 6 Gr. 575 ; S. C. 7 Gr. 214 ; Doupe v. 
 Stewart, 13 Gr. 637 ; Steele v. Grossmith, 19 Gr. 141 ; railvxiy cases, Russell v. 
 The Great Anglican Railway Company, 3 Mac. and G. 125 ; Furness v. The Cale- 
 barn Railway Company, 32 L. J. Ch. 170 ; Jte Manchester and Milford Railway 
 Company, L. R. 14 Ch. D. 645 ; Peto v. Welland Railway, 9 Gr. 456; Simpson v. 
 The Ottawa and Prescott RailwayCompany, 1 Ch. Ch. R. 99, 126.) 
 
RECEIVERS. 
 
 67 
 
 For the practice in Chancery on the appointment of a receiver, see G. O. Chy., 
 278 to 283. For discussion as to the powers of appointing receivers given to the 
 Court by this Act, see Anglo-Italian Bank v. Davies, L. R. 9 Ch. D. 275. For cases 
 in which a receiver will be appointed, see Bemey v. Sewell, 1 J. & W. 648 ; 
 Owen V. Homan, 3 Mac. & G. 378 ; Silver v. Bishop cf Norwich, 3 Swanst, 112 ; 
 Smith V. Smith, 10 Ha. App. 71. 
 
 Under 0. XLVI. r. 4 : — An application for an order under section 17, sub-sec- 
 tion 8, of the Act, or under Rules 2 or 3 of this Order, may be made to the Court 
 or a Judge by any party. If the application be by the pl.rmtiff for an order under 
 the said sub-section 8, it may be made either ex parte or on notice, and if for an 
 order under the said Rules 2 or 3 of this Order, it may be made, after notice to the 
 defendant, at any time after the issue of the writ of summons, and if it be by any 
 other party, then on notice to the plaintiff, and at any time after appearance, by 
 the party making the application. And by r. 6 of the same order : — No writ of 
 injunction shall be issued in any case. An injunction shall be by a judgment or 
 order, and any such judgment or order shall have the effect which a writ of injunc- 
 tion now has. O. XLvII. r. 1 provides as follows : — Where by these Rules any 
 application is authorized to be made to the Court or a Judge m an action, such 
 application shall be made by motion. And see the following rules of the same 
 order as to the practice upon motions. 
 
 /'raf//^— Plaintiff should endorse his writ with a claim for an injunction or 
 receiver, when the obtaining of either is a substantial object of the action. Cole- 
 bourne V. Coleboume, L. R. 1 Ch. D. 690. 
 
 Under the power given by thfe Judicature Act, 1873, s. 26, sub-s. 8 (Ont. Judic. 
 Act, sec. 17, 8ub-8. 8), to appoint a receiver in all cases in which it shall appear 
 just and convenient, the order made on interlocutory application for the appoint- 
 ment of a receiver was extended to the whole property comprised in the plaintiff's 
 security, as to part of which he was legal and as to part equitable mortgagee, 
 Pease v. Fletcher, L. R. 1 Ch. D. 273. In an action to enforce specific perform- 
 ance of a parol agreement to execute a bill of sale of personal chattels, upon an ex 
 parte motion before appearance of the defendant, there being evidence of immediate 
 danger of the chattels in question being disposed of, an order was made appointing 
 the plaintiff (without security) interim receiver for fourteen days, or until a receiver 
 should be appointed under a reference to Chambers for that purpose, which the 
 Vice-Chancellor had directed. The plaintiff undertook to deal with the property 
 only under the direction of the Court, and to abide by any order which the Court 
 might make as to damages or otherwise, Taylor v. Eckersley, L. R. 2 Ch. D. 302. 
 On the application of an unpaid vendor of the property of a company in voluntary 
 liquidation, and unable from insolvency to carry on its works, the vender w ' ap- 
 
 Eointed receiver without security or salary, Boyle v. Bettvd Llantwit Company, 
 I. R. 2 Ch. D. 726. In an action by debenture holders of a mining company 
 against the company for foreclosure, the Court has jurisdiction to make an interim 
 order for the appointment of a manager, Peek v. Trinsmaran Iron Company, L. R. 
 2 Ch. D. 115. 
 
 A creditor, who had recovered judgment in an action in the Chancery Division 
 for payment of a sum of money, sued out an elegit against his debtor, whose only 
 interest in land was an equity of redemption in fee. The creditor then commenced 
 an action in the Chancery Division, claiming to have it declared that he was 
 entitled to a charge on the land, and to have such charge enforced by sale, fore- 
 closure, delivery in execution, or otherwise as the Court might direct, and asking 
 for a receiver. The plaintiff then moved for a receiver in the new action : — Held 
 that plaintiff might obtain a receiver on interlocutory application in the action, 
 Anglo-Italian Bank v. Davies, L. R. 9 Ch. D. 275. In an action for the specific 
 performance of an agreement to accept a lease of a farm, in which judgment had 
 been given for the defendant, the plaintiff having appealed, the Court of Appeal 
 (no previous application having been made to the Divisional Court or a Judge) 
 appointed the plaintiff receiver and manager of the farm, without security, on nia 
 undertaking to abide by any order which the Court might make in the matter, 
 Hyde v. Warden, L. R. 1 Ex. D. 309. A., who w^as a member of a firm of solicitors, 
 was appointed executor of a will, probata' "■' which was contested. Immediately after 
 the testator's der.th, A. commenced against his widow an action in the Chancery Di- 
 vision to administer his estate, the writ in which was by leave of the Court amended 
 by asking for a receiver pending the litigation in the Probate Division. A.'s firm ap- 
 peared for both the plamtiff and defendant in the Chancery action, and an order 
 wab made appointing A. to be receiver of the personal estate until the decision of 
 
 % 
 « 
 
>1.!i 
 
 4 ', 
 
 58 
 
 JUDICATURE ACT. 
 
 the Probate action, and also to receive the rents of the real estate, the only security 
 ordered being the payment of £2,000 into Court, though the rents were about £3,600 
 per annum. The widow after obtained an order to change her solicitors, and 
 moved to discharge A. from being receiver. She denied having given the firm 
 any authority to appear for her, and it was established, at all events beyond 
 doubt, that she had never sanctioned the appointment of A. as receiver :— Held by 
 the Court of Appeal, that the appointment of A. as receiver was improper, for that 
 the appointment of a member of the firm of the plaintiff's solicitors to be receiver 
 makes it impossible to secure the proper checking of the receiver's accounts, and 
 that a party to the action ought not, except in an extreme case, to be appointed 
 without the assent of the other party. A. was accordingly discharged from being 
 receiver and ordered to pay the costs, both in the Appeal Court and in the Court 
 below. In re Lloyd, Allen v. Lloyd, L. R. 12 Ch. D. 447. The plaintiJBF, in an 
 ejectment action, which was set down for trial, but had been staved until another 
 action affecting the same property, and brought by the defendant in ejectment 
 against the plaintiff and others should be ready for trial, moved for a receiver and 
 for attornment to him. The defendant in ejectment set up a defence that in equity 
 the plaintiff was only a sub-mortgagee. The evidence in support of the motion 
 shewed that the property was wasting, and that, even if the plaintiff was only 
 oub-mortgagee, it was insufficient for the original mortgage upon it; and this 
 evidence was not met to the satisfaction of the Court :— Held, that under the cir- 
 cumstances it was just and convenient within the Judicature Act, 1873, s. 25, sub- 
 section 8 (Out. Judic. Act, s. 17, sub-s. 8), now to appoint a receiver, and an order 
 was made accordingly, unless the defendant elected within four days to pay an 
 occupation rent into Court, the amount to be settled in Chambers, The Heal and 
 Personal Advance Company v. McCarthy, 27 W. R. 706. 
 
 One appointed "on giving security" is not receiver until it is given, Edwards 
 V, Edwards, L. R. 2 Ch. D. 291. This would seem to over-rule, Fairfield v. Weston, 
 2 S. & S. 96 ; and see Western Canada v. Ince, 8 P. R. 262. 
 
 For example of terms and conditions upon appointment of receiver, see Shaw 
 V. Earl of Jersey, L. R. 4 C. P. D. 359. 
 
 As to appointing a receiver, instead of issuing a sequestration, see Bryant v. 
 Bull, L. R. 10 Ch. Div. 153. 
 
 (9) In questions relating to the custody and education of 
 infants, the Kules of Equity shall prevail. 
 
 Authority of father at Common Law. — In The King v. Greenhill, 6 N. & M. 
 244, in a very strong case in favour of the mother, it was after grave deliberation, 
 held that the father is, by the Common Law, entitled to the custody of his legiti- 
 mate children even to the exclusion of the mother, although they be within the age 
 of nurture ; and it is the bounden duty of a Court of Common Law to take them 
 from the mother and to place them in the custody of the father, unless there be 
 well-founded apprehensions of the father acting with extreme harshness, or cruelty, 
 or with gross profligacy, or immoral conduct, so that the child would be in danger 
 of contamination, in which case the Court might withhold interfering to grant an 
 order for taking them out of the mother's custody. In re Hakewell, 12 C. B. 223, 
 decided in 1852, it is said that where the father was in possession of his legitimate 
 children, a Court of Common Law had, under no circumstances, any power to con- 
 trol or interfere with that right. But the Court of Chancery, under certain cir- 
 cumstances as exercising the controlling power of the Crown as parens patrits, did 
 and does exercise the power of removing children from the custody and care of the 
 father. 
 
 The Statute 12 Car. 2, c. 24, sec. 8, enacts that "where any personjlhath or shall 
 leave any childe or children under the age of twenty-one years, and not married at 
 the time of his death, that it shall and may be lawful to and for the father of such 
 childe or children . . . by his deed executed in bis lifetime, or by his last will 
 and testament in writing, in the presence of two or more credible witnesses, in such 
 manner, and from time to time, as he shall respectively thinke fitt to dispose 
 of the custody and tuition of such childe or children for and during such time as he 
 or they shall respectively remains under the age of twenty-one years, or any lesser 
 time, to any person or persons in possession or remainder, other than Popish 
 recusants, and that such dispoBition of the custodie of such childe or children . . , 
 
CUSTODY AND EDUCATION OF INFANTS. 
 
 59 
 
 shall be good and effectual againat all and every person or persons claiming the 
 custody or tuition of such childe or children as guardians in socage or otherwise, 
 and that such person or persons to whom the custody of such childe or children hath 
 beene or shall be soe disposed or devised as aforesaid, shall and may maintain an 
 action of ravishment of ward or trespasse against any person or persons which 
 shaJl wrongfully take away or detain such childe or children, for the recovery of 
 such childe or children, and shall and may recover damages for the same in the 
 said action for the use and benefit of such childe or children." 
 ' Conflict between Law and Equity. — The Courts of Law held that this Act left no 
 room for the exercise of any discretion in a contest between a guardian appointed 
 by the will of the father and other persons who might have the custody of the 
 children. The Court of Chancery, however, notwithstanding the Act, was 
 accustomed to interfere with the exercise of the legal right and to restrain in cases 
 where it appeared necessary in the interests of the infants to do so. The cases of 
 re Andrews, L. R. 8 Q. B. 153, and Andrews v. Salt, L. R. 8 Ch. App. 622, are 
 good illustrations of this conflict, and some extracts from the judgments will be 
 instructive. Both cases were as to the custody of the same female infant. By an 
 ante-nuptial settlement, it had been agreed that any sons of the marriage should be 
 educated as Roman Catholics and any daughters as Protestants. The father, by 
 his last will, directed that all his children should be brought up as Roman 
 Catholics, and appointed his brother their guardian. At this time the child was 
 about nine months old. The mother retained the custody of the child until she 
 was nearly nine years of age, educating her as a Protestant, and at that period the 
 guardian applied to the Court of Queen's Bench for a writ of habeas corpus. That 
 Court held that the guardian was legally entitled to the custody of the child, 
 and that a court of law had no discretion to refuse it to him, he being a fit person 
 and the child too young to choose for itself. In giving judgment Archibalcl, 
 J. , said :— " Then the question which arises is, whether as a Court of Common Law 
 we can give any effect to the arrangement made before marriage with respect to 
 the education of the child, and treat it is as binding on the guardian, who stands, 
 (Com. Dig. Guardian, (D),) in loco parentis, the admitted object of the present appli- 
 cation being, that the child shall henceforth be brought up in the religious ^ith 
 of the father ; or whether we can decline to interfere with the present custody of 
 the child on the ground suggested that the change proposed would be prejudicial 
 to her interests. In dealing with questions of this nature the Court of Chancery, 
 exerting the prerogative of the sovereign as parens patrice, has assumed a more 
 extensive authority than that exercised by the Common Law Courts, and although 
 that Court, in making any order as to the custody or education of an infant, pays 
 in general the utmost regard to rights and wishes, or assumed wishes, of the father 
 as to the custody and education of his child {Ex parte Skinner, 9 J. B. Moore 278; 
 Hawksworth v. Hawk worth, L. R. 6 Ch. 539,) still, in carrying out what was 
 conceived to be the true interests of an infant, an arrangement similar in effect to 
 that in the present case was upheld by that Court. In the case of Hill v. Hill, 31 
 L. J. Ch. 505, a Roman Catholic, who lived until his eldest child was seven, and 
 had allowed the mother, a Protestant, to have exclusive charge of the education 
 of the children during his life, and they with his full knowledge were brought up 
 in the Protestant faith was held to have abdicated his right to direct their religious 
 education, and in ordering a scheme to be settled for their education the Court dis- 
 regarded a direction in his will that they should be brought up in the Roman 
 Catholic faith. The Courts of Common Law, however, have always declined to 
 give effect to any mere arrangement or consent on the part of the father disposing 
 of the custody of his infant child, and have felt bound notwithstanding, to enforce 
 the right of tne father when asserted. In the case of Reg. v. Smith, 22 L. J. Q. B. 
 116, it was held by Earle, J., in the Bail Court, that a contract, by the father of a 
 child with the third person that the latter should have the custody of the child 
 was in the nature of a mere consent, and might be revoked by the father, an ^ 
 that he was entitled by a habeas corpus to have the child delivered over to 
 him. Indeed it appears to have been the invariabfe practice of the Common Law 
 Courts on an application for a habeas corpus to bring up the body of a child detained 
 from the father (and the case would be the same as to a testamentary guardian) to 
 enforce the father's right to the custody even against the mother, unless the child 
 be of an age to judge for itself, or there be an apprehension of cruelty from the 
 father, or of contamination, in consequence of his immorality or gross profligacy. 
 If the infant be of an age to elect for itself, the Court will merely interfere so far 
 as to get it free from illegal restraint without handing it ovei to any oody. This was 
 the course adorced in Rex. v. Delaval, 3 Burr. 1435, in the case of a girl eighteen 
 
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O' 'lA 
 
 60 
 
 JUDICATURE ACT. 
 
 years of age, who was delivered from a custody considered illegal, and left at liberty 
 to go where xhe pleased. But in the absence of any right of choice, the Court goes 
 further, and transfers the infant to the proper legal custody. The right to such an 
 election it has now been clearly decided depends upon age alone, and not on mental 
 capacity; see Reg. v. Clarke, 7 E. & B. 186; 26 L. J. (Q. B.) 169, and it may be 
 taken as settled that no such choice can be made, at all events by a female infant 
 under the age of sixteen ; Reg. v. Howes, 2 E. & E. 332 ; 30 L. J, M. C. 47, followed 
 by the Court of Probate and Divorce, in the cases of Cartlidge v. Cartlidge, 2 Sw. 
 & Tr. 567. 31 L. J. (P. & M.) 85, and Mallinson v. Mallinson, L. R. 1 P. & D. 
 221. The principle on which this Court acts in handing over to the parent or 
 guardian an infant too young to make choice as to its custody, is well explained 
 by Coleridge, J., in Rex v. Greenhill, 4 A. & E. 624, at p. 643. He says : — ' Where 
 the person is too young to have a choice, we must refer to legal principles to see 
 who is entitled to the custody, because the law {jresumes that, where the legal 
 custody is, no restraint exists; and where the child is in the hands of a third person 
 that presumption is in favour of the father. But although the first presumption is 
 that the right custody, according to law, is also the free custody, yet if it be shewn 
 that cruelty or corruption be apprehended from the father, a counter-presumption 
 arises.' These views were adopted and acted on by this Court in the subsequent 
 case of Rex v. Isly, 5 A. & E. 441, where upon a habeas corpus obtained by testa- 
 mentary guardians appointed by the father's will, two children, too young to mr.ke 
 choice for themselves, were removed from the custody of the grandfather and grand- 
 m jther, and directed to be handed over to the guardians, although the grandparents 
 had, at the request of the father, on the occasion of his wife's death, come over 
 from America at considerable expense and sacrifice and settled in England, for the 
 express purpose of taking care of the children, who had continued under their care 
 for a period of about four years. The same rule as to the paramount right of the 
 father in the view of a Court of Common Law, was also expressed by the Court of 
 Common Pleas in the case of re Hakewell, 12 C. B. 223, and fully approved by 
 this Court in the case of Reg. v. Clarke, 7 E. & B. 186; 26 L. J. (Q. B.) 169, 
 already cited. It is with great regret, that we therefore feel ourselves bound to 
 hold, that, assuming the validity of the guardian's appointment, and notwithstand- 
 ing the lateness of the application, and the apparent harshness of such a proceeding 
 towards the grandmother of the child, we have no discretion to refuse the writ, and 
 we should be bound to hand over the child to the custody of the guardian, as the 
 only custody legally free from restraint." 
 
 A bill was then filed in the Court of Chancery and it was there held that an 
 ante-nuptial agreement, that the children shall be brought up in adififerent religion 
 from that of the father, is not binding at law or in equity ; but such an agreement 
 win have weight with the Court in considering whether the father has abandoned 
 his right to educate his children in his own religion. Where a father has not for- 
 feited or abandoned his right to educate his children in his own religion, the Court 
 cannot refuse to order a child to be educated in that religion merely because it 
 thinks that the child will be more happy and contented, or better provided for, if 
 left with those who have had the care of it. But if a father has forfeited or 
 abandoned his right to educate his children in his own religion, the Court will con- 
 sider only the happiness and benefit of the child, and will order it to remain in the 
 care of those whom by it has been brought up, and to be educated in their religion, 
 although the child may not have so far imbibed the particular doctrines of that 
 religion as to render it dangerous to change its religious training, Andrews v. Salt, 
 L. R. 8 Ch. App. 622., and under the circumstances of the case (for which see the 
 case) the Court thought that the infant should be allowed to remain with her 
 mother and to be brought up in the Protestant religion. 
 
 The Court of Chancery did not act merely upon what it considered to be for the benefit 
 of the infant. In re Carswell, 6 P. R. at p. 241, Gwynne, J., said : — " The Court of 
 Chancery never did assume the jurisdiction to remove the children from the custody of 
 the father, upon the ground merely that it might be more for their benefit to be with 
 their mother ; nor upon the ground of the religious opinions of the father, except so far 
 as the law of the country regards some religious opinions as dangerous to society, 
 or as inculcating immorality and vice. (See Shelly t>. Westbrooke, Jacob, 266.) ^r 
 R. T. Kindersley, V.C, in Curtis v. Curtis, 5 Jur. N. S. 1147, says:— 'This Court 
 (of Chancery) does not exercise the jurisdiction in merely considering whether it 
 would be for the benefit of the children that their custody should be with the 
 father or with the mother, or with some other relative, or with strangers, simply 
 because, upon the whole, it would be most for the benefit of the children that there 
 
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CUSTODY AND EDUCATION OF INFANTS. 
 
 61 
 
 •? : 
 
 ii 
 
 should be that custody. I repudiate all such jurisdiction as belonging to this 
 Court. If such a jurisdiction existed, I suspect that the peace of half the families 
 in this country would be disturbed by applications, shewing or attempting to shew, 
 what I am afraid might be shewn in a great many cases, that it was most for the 
 interest of the children that they should be removed from the custody, both of the 
 father and the mother.' And, again, 'it appears to me the Court ought never to 
 interefere, unless in some very material and important respect it is essential to the 
 welfare and well being of the children, either physically, intellectually or morally, 
 that it should be so.' Then he says: — 'The cases which have most frequently 
 occurred of the Court exercising it, have been cases where the father being of a 
 perverted condition of mind in respect of religious and moral views or habits, is 
 inculcating such habits, or such views and opinions, upon his children in such a way 
 as that it will be most grievously and seriously detrimental to them in after life as 
 members of society. The Court will also interfere unquestionably where the 
 father, although he may not in the smallest degree tend by his teaching or his 
 example to demoralize the children, does treat them witli ich a degree of violence 
 or harshness and cruelty, as that he appears utterly unhi to have the conduct or 
 management of children.' And, again, with reference to to the religious opinions 
 of the father, he says :— ' Now one thing is pretty evident, namely, that during 
 the period of the married intercourse between these two parties, there have been 
 differences of opinion upon religious questions, the most unfortunate sort of differ- 
 ences that can arise, I apprehend, between husband and wife, especially where 
 neither the husband nor the wife seems much disposed to submit his or her opinion 
 to the opinion of the other. Suppose the father entertains the opinion which I 
 believe is entertained by a certain section of individuals called ' Separatists', who 
 deny that they belong either to the Church of England, the Church of Rome, the 
 Baptists, the Anabaptists, the Anti-Pedobaptists, the Independents, the Wes- 
 leyans, or to any denominations whatever, who call themselves Christians, and 
 assert and believe in all the truths of the Bible, but insist that there should be no 
 church, that every man should be his own priest, having his own place of worship, 
 and that there should be no creed whatever by which persons might express their 
 religious opinions. There are persons of respectability who bring up their children 
 with these views, but nobody would suggest that they are not fit to have the care 
 of their children '." But aw post in notes to the Ontario Statute. 
 
 In that case (re Carswell) it was held that it is not sufficient for the mother, claim- 
 ing child\'en as against their father, to allege that he holds what she calls dangerous 
 and fanatical religious views (in this case those of the ' ' Swedenborgians "), nor will a 
 child, even though within the years of nurture, be delivered up to the mother under 
 Con. Stai;. U. C, cap. 74, sec. 8, unless she establishes such a case as would justify 
 her in leaving her husband's home. See also re Leigh, 5 P. li. 402. 
 
 Jf. S. O., c. 130, s. 1 enacts that any of the Superior Courts of Law or Equity, or any 
 .Tudgeof any such Courts, upon hearing the petition of the mother of any infant, 
 being in the sole custody or control of the father thereof, or of any person by his 
 authority, or of any guardian after the death of the father, may, if such Court or 
 Judge sees fit, make order for the access of the petitioner to such infant, at such 
 times and subject to such regulations as such Court or Judge thinks convenient and 
 just, and if such infant is within the age of twelve years may make order for the 
 delivery of such infant to the petitioner to remain in the care and custody of the 
 petitioner until such infant attains the ago of twelve years, subject to such regula- 
 tions as such Court or Judge may direct, and such Court or Judge may also make 
 order for the maintenance of such infant by payment by the father thereof, or by 
 payment out of any estate to which such infant may be entitled, of such sum or 
 sums of money from time to time as according to the pecuniary circumstances of 
 such father, or the value of such estate, such Court or Judge thinks just and 
 reasonable. And sec. 4:— No order directing that the mother shall have the 
 custody of, or access to, an infant shall be made by virtue of this Act in favour 
 of a mother against whom adultery has been established by judgment in an action 
 for criminal conversation at the suit of her husband against any person. 
 
 It was held in re Leigh 6 P. R. 402, that the Statute in question does not take 
 away the Common Law right of a father to the custody of his child, but only 
 makes the recognition of this paternal right conditional upon the performance of 
 the marital duty, and subjects it in some degree also to the interests of the child. 
 If, therefore, upon an application of this kind, it appears that the husband and 
 wife are living apart, the Court will enquire into the cause of their separation, in 
 onler to ascertain (1) whether the husband has forfeited, by breach of his marital 
 
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 62 
 
 JUDICATURE ACT. 
 
 duties, this prima facie right to the possession of his child ; (2) and whetherthe wife, 
 by deserting the husband without reasonable excuse, has reltnauished her claim to 
 the benefit and protection of the Statute, which was intendea "to protect wives 
 from the tyranny of their husbands who ill use them." 
 
 In re Davis, 3 Ch. Ch. B. 277, where the mother petitioned that the child, who 
 was seven years of age, might remain in her custody, and that the father might 
 pay for the child's maintenance, the parents were living apart, and the only 
 evidence that this was the fault of the husband was an affidavit of the wife. Mowat, 
 V. C, said :—'* According to the construction which the Imperial Act, 2 & 3 Vic, 
 Ch. 54, has received, it must be considered that, under our Act, the Court has an 
 absolute discretion to give the custody of children under twelve to the mother, 
 Shillito V. Collet, 8 W. R. 683 ; S. C. lb. 696 ; Warde v. Warde, 2 Ph. at 791. In 
 the exercise of this discretion, where the parents are living apart through the fault 
 of the husband, the custody of the children ia generally given to the mother, re 
 Tomlinson, 3 D. & Sm. 371. But it has been held, that, to justify an order to 
 that effect, where the living separate is the voluntary act of the wife, it is not 
 indispensable'that there shoulrl be proof satisfactory to the Court that! she is living 
 separate for reasons which, in England, would entitle her to a divorce either a 
 vinculo or a tnensa et thoro, re Bartlett, 2 Coll. 661. One object of the Act has been 
 explained to be the protection and interest of the children, re Halliday, 17 Jur. 56. 
 Curtis V. Curtis, 5 Jur. N. S.^147, in which a general jurisdiction to that effect 
 was disclaimed by the Vice-Chancellor, was not a case under the Act, the children 
 there being over seven years old, the age to which the English Act is limited." 
 And again : — "Where the Court is not satisfied that the separation was unjustifiable 
 on the part of the wife, but she has not been able to prove by independent evidence 
 that there were facts which justified it, what then ? Is the position of a wife and 
 child, under the Act, helpless, wherever, for example, the husband's misconduct 
 is concealed from third persons ? I am not prepared so to hold. I think that it 
 will be a more sound rule for the exercise of the discretion which belongs to me in 
 this jurisdiction, and that it will be in accordance with the decided cases, to say, 
 where the Court is satisfied that it will be for the interest of the child to be in the 
 custody of the mother, that the Court may in its discretion, in view of all the cir- 
 cumstances, direct the custody to be given to the mother in case the cause of her 
 living apart is, on her own statement, iustifiable,Iand the Judge is not prepared to say 
 that he disbelieves that statement. Every case must depend on its own circum- 
 stances." 
 
 See also re Allen, Regina v. Allen, 31 U. C. R. 458 ; 5 P. R. 443 453; re Cars- 
 well, 6 P. R. 240; re Ross, 6 P. R. 285; Davis v. McCaffrey, 21 Gr. 554; Munro 
 V, Munro, 15 Gr. 431 ; re Smith, 8 P. R. 23 ; re Scott, lb, 58 ; and as to illegitimate 
 children, see re Brandon v. Beasley, 7 P. R. 347. 
 
 (10) Generally in all matters not hereinbefore particularly 
 mentioned, in which there is any conflict or variance 
 between the Rules of Equity and the Rules of the 
 Common Law with reference to the same matter, the 
 Rules of Equity shall prevail. 
 
 See notes to sec. 12. 
 
 Rules of Equity.— In Grant v. Holland, Ross v. Grant, L. R. 3 C. P. D. 180, it 
 was held that the conflict between the practice in Equity and at Law upon changing 
 solicitors in a suit must be now determined in favour of the Equity practice. In 
 that case Lindley, J. said : — "The question then is reduced to the construction of 
 8ub-8. 11 of s. 25 of the Judicature Act, 1873, which provides that in all matters in 
 which there is any conflict or variance between the rules of Equity and the rules of 
 Common Law with reference to the same matter, the rules of Equity shall prevail. 
 I do not know why the practice with regard to th a changing of solicitors should 
 not be a ' rule of equity.' The general scope of the Judicature Acts is that there 
 should be one un^orm administration of justice in the High Court of Justice, as 
 was laid down by the Court of Appeal in Bustros v. White, L. R. 1 Q. B. D. 423. 
 Unless there be something to preclude it the rules of Equity are in all cases to 
 provaiL" And see Smith v. Day, W. N. (1881) 38. 
 
PART III. 
 SITTINGS AND DISTRIBUTION OF BUSINESS. 
 
 HIQn COURT. 
 
 18. The division of the legal year into terms shall be abol- 
 ished so far as relates to the administration of justice ; and 
 there shall not be terms applicable to any sitting or business of 
 the High Court of Justice, or of any commissioners to whom 
 any jurisdiction may be assigned under this Act, or of any 
 commissioners of assize ; but in all cases in which, under the 
 law now existing, the terms into which the legal year is 
 divided are used as a measure for determining the time at or 
 within which any act is required to be done, the same may con- 
 tinue to be referred to for the same or the like purpose, uuless 
 and until provision is otherwise made by any lawful authority. 
 
 See Imp. Act of 1873, s. 26, first part; R. S. O., c. 41, s. 12; G. O. Chy. 413. 
 
 The sittings of the Courts and the vacations are provided for by O. LVII. 
 There are to be three sittings, Michaelmas, from third Monday in November until 
 the Saturday of the second week thereafter; Hilary, from the first Monday in 
 February until the Saturday of the following week ; and, Easter from the third 
 Monday in May until the Saturday of the second week thereafter, but the Judges 
 may shorten these to any period not less than two weeks, or increase the length of 
 the sittings to any ijeriod, Ibid. r. 1. The provisions of the Order do not apply to 
 the Chancery Division except when the Judges of that Division are of opinion 
 that the business is such as to render these provisions necessary or convenient for 
 its due despatch. 
 
 As to the Legal Terms heretofore in the Common Law Courts, see R. S. O., c. 
 39, SB. 11 to 15 ; and as to the sittings of the Court of Chancery, see Chan. Con. Gen. 
 Ord. 413, 414; Gen. Ord. 590 to 593. The Courts of Assize, Nisi Prius, Oyer and 
 Terminer, and General Gaol Delivery for any county were not put an end to by 
 the commencement of a Term of the Superior Courts of Common Law, R. S. 0., 
 c. 41, s. 12. 
 
 19. Subject to Rules of Court, the High Court of Justice and 
 the Court of Appeal, and the Judges thereof respectively, or 
 any such commissioners as aforesaid shall have power to sit and 
 act, at any time and at any place, for the transaction of any 
 part of the business of such Courts respectively, or of such 
 Judges or commissioners, or for the discharge of any duty which 
 by any Statute, or otherwise, is required to be discharged 
 during or after term. 
 
 See Imp. Act of 1873, s. 26, second part; R. S. 0., c. 41, s. 12. 
 
 SO. The Lieutenant-Governor in Council may from time to 
 time, upon any report or recommendation of the Council of 
 
 I 
 
 ;3i f 1 
 
64 
 
 JUDICATURE ACT. 
 
 Judges of the Supreme Court hereinafter mentioned, make, re- 
 voke or modify, orders regulating the vacations to be observed 
 by the High Court of Justice and the Court of Appeal, and in 
 the offices of the said Courts respectively ; and any Order in 
 Council made pursuant to this section shall, so long as it con- 
 tinues in force, be of the same effect as if it were contained m 
 this Act ; and Rules of Court may be made for carrying the 
 same into effect in the same manner as if such Order in Council 
 were part oi this Act. 
 
 See Imp. Act of 1873, b. 27; first part. 
 
 Con. Gen. Ohy. Orders as to vacations are aa follows: — 
 
 421. The long vacation is to commence on the 1st day of July, and to terminate 
 on the 21 st day of August in each year. 
 
 422. The Christmas vacation is to commence on the 24th day of December, in 
 every year, and terminate on the 6th day of the following January. 
 
 423. The days of the commencement and termination of each vacation, shall be 
 included in and reckoned part of the vacation. 
 
 424. The offices of the Court shall be open on every day in the year, except dur- 
 ing vacation, and on Sundays, New Year's day, Good Friday, Easter Monday, 
 Christmas day, the days appointed for the celebration of the birthday of Her 
 Majesty, and Her Koyal Successors, and any day appointed by Proclamation for a 
 General Fast or Thanksgiving, see K. S. O., c. 1, s. 8, s.-s. 16. 
 
 425. During vacation the Court will not sit, and the offices thereof are respect- 
 ively to be closed, but the offices f)f the Registrar, and Clerk of Records and Writs 
 are to be open for all purposes of making applications for injunctions, and from ten 
 o'clock in the forenoon, till twelve o'clock noon, each day, for such proceedings as 
 do not require the attendance of the opposite party. 
 
 As to vacations in Common Law Courts, see R. S. O., c. 39 ; 88. 20, 48 ; c. 50, 
 ss. 68, 95. 
 
 As to sittings of vacation Judges, see sec. 21 ; O. LVII, rr. 2, 3, 4. 
 
 Jil. Provision shall be made by Rules of Court for the hear- 
 ing, in Toronto, during vacation, by Judges of the High Court 
 of Justice and the Court of Appeal respectively, of all such ap- 
 plications as may require to be immediately or promptly heard. 
 
 See Imp. Act of 1873, s. 28 ; OrderJLVII, post. 
 
 33. Commissions of assize or any other commissions, either 
 general or special, may be issued, by the proper authority, 
 assigning to the persons to be therein named, the duty of 
 trying and determining within any place or district specially 
 fixed for that purpose by such commission, any causes or 
 matters, or any questions or issues of fact or of law, or 
 partly of fact and partly of law, in any cause or matter, 
 depending in the said High Court ; or the exercise of any civil 
 or criminal jurisdiction capable of being exercised by the said 
 High Court ; and any' commission so issued shall be of the 
 same validity as if it were enacted in the body of this Act ; 
 and any commissioner or commissioners shall, when engaged 
 in the exercise of any jurisdiction so assigned to him or them, 
 be deemed to constitute a Court of the said High Court of 
 Justice. 
 
DISTRIBUTION OF BUSINESS. 
 
 w 
 
 See Imp. Act of 1873, b. 29. 
 
 In Begina v. Oeurge Archibald Amer & Laban Amer, 42 T.' . C. R. 391, It was 
 held that the Crown, oy prerogative right, could issue a C'^inmisBion to the Judge 
 of the Provisional Judicial District of Algoma to hold a Court of Oyer and Ter- 
 miner, and General Gaol Delivery, for trial of felonies, &o. Semble, per Wilson, J.. 
 that such Judge, having by sec. 94 of C. S. U. C, en. 128, the same powers and 
 duties as a County Judge in Upper Canada, he might have been appomted under 
 C. S. U. C. oh. 11 sec. 2, to act as Commissioner. Semble, also, that the Lieut- 
 enant-Govemor of Ontario, as well as the Governor-General, has the power to 
 issue Commissions to hold Courts of Assize. 
 
 ' In re Leibes v. Ward, 45 U. C. R. 375, under the authority of the following 
 deputation:— "Belleville, Ont., 24th July. 1880, I hereby appoint E. B. Fralich, 
 Esq., barrinter-at-law, as my deputy, to hold the Second Division Court of the 
 County of Hastings, on Monday, the 26th day of July instant, at the Town Hall, 
 in the Township of Sidney — S. 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 postponement for that purpose, on 2nd August following, 
 at the Judge's chambers in Belleville, outside the limits of the Second Division, but 
 within the County, without having named a day and hour for delivery thereof, 
 in writing at the Clerk's office. Held (1) That the word " Judge " in sec. 20 of 
 R. S. 0., cap. 47, includes the Junior Judge, and that the deputation was there- 
 fore valid ; (2) That the proper construction of the same was, 'to hold the Second 
 Division Court of the County of HastingH, to be holden on Monday, &c., " and 
 that his appointment continued until he hod performed the purpose for which 
 it was made ; (3) That the effect was to clothe Mr. Fralich with all the powers 
 of the Junior Judge during the time of his appointment, wherever he might be 
 within the County. And the rule was theretore made absolute to rescind the 
 order made by Gait, J., for a prohibition, Cameron, J., dissenting. 
 
 83. All causes and matters in the High Court of Justice 
 shall be distributed among the several Divisions and Judges 
 of the said High Court, in such manner as may from time 
 to time be determined by any Rules of Court, or orders 
 of transfer, to be made under the authority of this Act. Every 
 document by which any cause or matter shall be commenced in 
 the said High Court shall be marked with the name of the Di- 
 vision to which the same is assigned. 
 
 See Imp. Act of 1873, ss. 33 and 42. 
 
 24. Subject to any Rules of Court and to the provisions of 
 this Act and to the power of transfer, all causes and matters 
 pending in the Court of Queen's Bench at the commencement 
 of this Act are hereby assigned to the Queen's Bench Division 
 of the High Court; all causes and matters pending in the Court 
 of Chancery at the commencement of this Act are hereby as- 
 signed to the Chancery Division ; and all causes and matters 
 pending in the Court of Common Pleas at the commencement 
 of this Act are assigned to the Common Pleas Division of the 
 High Court. 
 
 See Imp. Act of 1873, a. 34. 
 
 85. Subject as aforesaid, every cause or matter afterwards 
 commenced in the said High Court of Justice shall be assigned 
 to one of the Di-visions of the said High Court, by marking the 
 5 
 
 l|: 
 
 ! 
 1 ( . ■ 
 
 "t 
 
 i 
 
 1 
 
 
G6 
 
 JUDICATURE ACT. 
 
 document by whioh the same is commenced with the name of 
 such Division. 
 
 (2) All interlocutory and other steps and proceedings 
 in or before the said High Court in any cause or 
 matter subsequent to the commencement thereof, 
 shall be taken (subject to any Rules of Court and 
 to the power of transfer) in the Division of the said 
 High Court to which such cause or matter is for the 
 time being attached. 
 
 See Imp. Act of 1876, s. 11, 8ub.8. 1. 
 
 a26. Any cause or matter may at any time, and at any stage 
 thereof, and either with or without application from any of 
 the parties thereto, be transferred from one Division or Judge of 
 the High Court of Justice to any other Division or Judge 
 thereof, by such authority and in such manner as Rules of 
 Court may direct, or as transfers might be made from one Court 
 to another before the passing of this Act. 
 
 aee Imp. Act of 1873, s. 36 ; R. S. O., c. 49, 21-29 ; 41 Vic. (Ont.) o. 8, 8. 4. 
 
 The provisinnB of the Administration of Justice Act, R. S. O., o. 49, respecting 
 the transfer of causes from one Court to another are as follows : — 
 
 Sec. 21.— The Court of Chancery in any suit or other proceeding instituted in 
 that Court shall have jurisdiction in all matters which would be cognizable in a 
 Court of Law ; but in case, at any stage of a cause in Chancery, it appears to the 
 Court or a Judge thereof that the suit or proceeding may for any reason be more 
 conveniently, expeditiously or inexpensively carried on or dealt with in a Court of 
 Law, the Court of Chancery or a Judge thereof may order the suit or proceeding to 
 be transferred to such one of the Courts of Common Law as the said Court or 
 Judge thinks proper ; and such order may be made by such Court or Judge 
 sua sponte, or upon the application of either party to the Court «r Judge on notice 
 to the other parties interested, and may be made at any stage of the suit or pro- 
 ceeding ; and the Court or Judge may make any order as to costs which seems rea- 
 sonable. 
 
 Sec. 22. — Where an order is made under the foregoing section the proper officer 
 of the Court of Chancery shall annex together all the pleadings and papers filed 
 with him, and transmit the same, together with the order of transference or a copy 
 thereof, to such office of the Court of Common Law as the order directs. 
 
 Sec. 23. — If it appears to a Court of Common Law or a' Judge thereof that anv 
 e(][uitable question raised in any action or other proceeding at Law, cannot be dealt 
 with by a Court of Law so as to do complete justice between the parties, or may 
 for any other reason be more conveniently dealt with in Equity, the Court or Judge 
 mav order the action or proceeding to be transferred to the Court of Chancery ; 
 and such order of transference may be made by the Court or Judge sua sponte, or 
 upon the application of either party on notice to the other parties interested, and 
 may be made at any stage of the action or other proceeding. 
 
 Sec. 24. — ^Where an order is made under the foregoing section, the proper officer 
 of the Court of Common Law shall annex together all pleadings and papers filed 
 with him, and transmit the same, together with the ordc v of crsnsference or a copy 
 thereof, to such officer of the Court of Chancery as th j c cder directs. 
 
 Sec. 26.— Where a transfer has been made undev oither the twenty-first or the 
 twenty-third section of this Act, the suit, action or other proceeding shall thereafter 
 proceed in the Court to which it has been transferred ; and the Judges of such Court 
 and the officers thereof shall have the same powers and perform the same duties in 
 
DISPOSITION OF BUSINESS. 
 
 67 
 
 relation thereto, and the practice and orders of Ruoh Court shall in all respects (or 
 as nearly in may be) apply as if the suit had been originally instituted as an action, 
 suit or proceeding in such Court; but no further or other plendinj^s shall be 
 necessary than the original pleadings in the Court from which such suit, action or 
 proceeding was transferred, unless especially ordered by the Court or Judge. 
 
 Sec. 26.— Where, in the opinion of a Court of Common Law or a Judge thereof, 
 it is necessary or proper in any action to take accounts or make inciuirTes, which 
 cannot so convenientl> or properly be taken or made under the exiHting practice at 
 Law, or by the means now available for the said Courts, as they might be in Chan- 
 cery, the Court or .fudge may order such accounts and inquiries to bo taken and 
 made by the Master or any of the local Masters of the Court of Chancery, instead 
 of ordering a transference of the suit generally to the said Court of Chancery. 
 
 Sec. 27, — Where an order is made under the preceding section, the Master to 
 whom the reference is directed shall proceed therem, and all the orders of the Court 
 of Chancery as to the powers of the Master, and as to the proceedings in the 
 Master's office, shall apply thereto, as if the reference had been made by an order 
 of the Court of Chancery. 
 
 And see O. S., 41 Vic, c. 8, a. 4, which amends B. S. 0., o. 39, and gives the 
 Chief Justices power to transfer causes so as to equalize the business of the two 
 Common Law Courts. 
 
 And see O. XLV. 
 
 37. The Judges to be placed on the rota for the trial of elec- 
 tion petitions for Ontario in each year, under the provisions of 
 " The Controverted Elections Act of Ontario," shall be selected 
 out of the Judges of the Supreme Court in such manner as may 
 be provided by any Rules of Court to be made foi* that purpose ; 
 ana in the meantime, and subject thereto, shall be selected, as 
 hitherto, that is to say : the members of the Court of Appeal, 
 and of the Queen's Bench, Chancery and Common Pleas 
 Divisions aforesaid shall, on or before the third day of Michael- 
 mas Term in every year, select, by a majority of votes of the 
 members of such Court or Division, one of the Judges thereof : 
 Provided that the Judges who at the commencement of this 
 Act, shall be upon the rota for the trial of such petitions during 
 the then current year, shall continue upon such rota until the 
 end of such year, in the same manner as if this Act had not 
 passed. 
 
 See Imp. Act of 1873, s. 38 ; B. S. O., o. 11, 8. 33. 
 
 2S, Every action and proceeding in the High Court of Jus- 
 tice, and all business arising out of the same, except as herein- 
 after provided, shall, so far as is practicable and convenient, 
 be heard, determined, and disposed of, before a single Judge. 
 
 See Imp. Act of 1876, s. 17, first part; E. S. O., c. 39, ss. 20-26; c. 60, ss. 
 281,282. 
 
 (2) A Judge sitting elsewhere than in a Divisional Court, is 
 to decide all questions coming properly before him, 
 and is not to reserve any case, or any point in a case, 
 for the consideration of a Divisional Court. 
 
 See Imp. Act of 1873, s. 46 ; Imp. Act of 1876, s. 22 ; Imp. Act of 1876, s. 17 
 R. Sup., C. 0. 67 ; R. Sup., 0. ; Deo., 1876, R. 8. 
 
 5 
 
68 
 
 JUDICATURE ACT. 
 
 (3) In all such cases any Judge sitting in Court shall be 
 
 deemed to constitute a Court. 
 See Imp. Act of 1873, s. 39, last part ; R. S. O, c, 39, s. 21, 
 
 39. All business which may from time to time be so ordered 
 by Rules of Court shall be transacted and disposed of by 
 Divisional Courts of the said High Court of Justice, which 
 shall for that purpose exercise all or any part of the jurisdiction 
 of the said High Court. 
 
 As to the proceedings which are to be heard and determined before the Divi- 
 onal Courts, see O. LIV. 
 
 (2) Any number of such Divisional Courts may sit at the 
 
 same time. 
 
 (3) A Divisional Court of the said High Court of Justice 
 
 shall be constituted by two or three, and no more, of 
 the Judges thereof; and, except when through pres- 
 sure of business or any other cause it may not con- 
 veniently be found practicable, shall be composed of 
 three such Judges. 
 
 The words " and no more " are copied from the English Act and are more appli- 
 cable to the English Divisional Courts than to those created by the present Act, 
 each of which has three Judges only "ivnd no more." 
 
 (i) Every Judge of the said High Court shall be quali- 
 fied and empowered to sit in any of such Divisional 
 Courts. 
 
 (5) But where the Divisional Court is constituted of two 
 
 Judges only, such Court shall not hear or adjudicate 
 upon any application against the judgment of either 
 of such Judges. 
 
 (6) The President of every such Divisional Court of the 
 
 High Court of Justice shall be the senior Judge of 
 those present, according to the order of their preced- 
 ence under this Act or otherwise. 
 
 See Imp. Act of 1873, s. 40 ; Imp. Act of 1876, s. 17 ; as to precedence see sec. 
 3, 3ub-8ec. 7. 
 
 30. Divisional Courts shall, as far as may be found practica- 
 ble and convenient, include one or more Judge or Judges at- 
 tached to the particular Division of the sejd Court to which the 
 cause or matter out of which such business arises has been 
 asci^ned. 
 
 See Imp. Act, 1873, s. 41. 
 
DISTRIBUTION OF BUSINESS. 
 
 69 
 
 31. Subject to any Rules of Court, it shall be ihe duty 
 of every Judge of the High Court who shall not for the 
 time being be occupied in the transaction of any business 
 specially assigned to him, or in the business of any other 
 Divisional Court, to take part, if required, in the sittings of such 
 Divisional Courts as may from time to time be deemed necessary 
 for the transaction of the business of any of the Divisions of 
 the High Court ; 
 
 (a) All such arrangements as may be necessary or 
 proper for that purpose, or for constituting or 
 holding any Divisional Courts of the said High 
 Court of Justice for any other purpose authorized 
 by this Act, and also for the proper transaction 
 of that part of the business of the said Divisions 
 respectively wrhich ought to be transacted by one 
 or more Judges not sitting in a Divisional 
 Court, shall be made from time to time under 
 the direction and superintendence of the Judges 
 of the said High Court ; 
 
 (h) And in case of d.^ibrence among them, in such 
 manner ar. a majority of the said Judges shall 
 determine. 
 
 See Imp. Act of 1873, a. 41, 
 
 In case the Judges are equally divided in opinion the judgment appealed from 
 stands, see Wyld v. The Liverpool and London and Globe Insurance Co., 1 Sup. 
 Ct. R. 604. in that case t'le Judges of the Supreme Court being equally divided 
 in opinion, and the decision of the Court below affirmed, the successful party was 
 refused the costs of the appeal, but (per the Chief Justice): — By 38 Vic. c. 11, s. 
 38, the Supreme Court being authorized, in its discretion to order the payment of 
 the costs of the appeal, the decision in this case will not necessarily prevent the 
 majority of the Court from ordering the payment of the costs of thd appeal in other 
 cases where there is an equal division of opinion amongst the Judges. Upon a 
 similar point arising in Moore v. Connecticut Mutual Life Ins. Co., 3 App. R. p. 
 287, Burton, J. A., stated the practice in the Court of Appeal, as follows ;— "As 
 to costs, our practice has been to give costs against the unsuccessful appellant even 
 in cases where he fails by reason of the Court of Appeal being equally divided. 
 If this were a Court of last resort, it is not impossible the judgment of the majority 
 of the Court might have been for a new trial, so as not to conclude the plaintiff. 
 Under these circumstances, we think the proper course is to dismiss the appeal, 
 without costs." 
 
 Appeals. 
 
 32, No order made by the High Court of Ju.stice or any 
 Judge thereof, by the consent of parties, or as to costs only 
 which by law are left to the discretion of the Court, shall be 
 subject to any appeal, except by leave of the Court, or Judge, 
 making such order. 
 
 See Imp. Act of 1873, s. 49 ; R. S. 0., c. 38, a. 18, aub-s. 3. 
 
 
1 
 
 70 
 
 JUDICATURE ACT. 
 
 :i!; 
 
 Consent Orders.— In Holt v. Jesse, L. R. 3 Ch. D. p. 182, Malins, V. C, said :— 
 " But as Liuch has been said in the course of the argument, and authorities have 
 be( n cited about the general principles of the Court in withdrawing consent given 
 to Older?, I beg to express my opinion, which I believe is in conformity with all 
 the cases that have been cited, that if it should turn out that by the inadvertence 
 of counsel, by the careless consent of the plaintiff or defendant himself, not 
 fully knowing or considering what he is about, an order given by consent has 
 prejudiced him in a manner which neither he nor his advisers could have antici- 
 pated at the time, such as in the case of Swinfen v. Swinfen (2 DeG. & J. 381), where 
 the counsel was instructed to do one thing and consented to a totally different thing ; 
 that is, for instance, being instructed to make a claim for an estate in fee simple, be 
 consented that the claimant should have a life estate only, or a tenure for life ; that 
 is entirely beyond his authority, and nothing could be more reasonable than that his 
 client should not be bound by such a consent inadvertently given. So in the case of 
 Furnival v. Boyle (4 Russ. 142-147), which has been cited. Lord Lyndhurst expressly 
 puts it on grounds with which I should most heartily concur, and which I should 
 never hesitate for one moment to act upon, in this way : ' Mr. Furnival supposed 
 that on his application, stating that counsel were not authorized to consent to the 
 order, the Court would suffer the subject to be again gone into ; and he therefore 
 did not, on the former occasion introduce all the circumstances which it now 
 a])[}ears he might have brought forward, if it had been then shewn that counsel, 
 when they exercised their discretion, had not those materials before them on 
 which a correct judgment might be formed, the decision of the Court might have 
 been different. It is stated that there is now evidence on affidavit which estab- 
 lishes, or goes far to establish, that point, I therefore think myself bound to 
 suspend the drawing up of the order till the case can be considered in the new form 
 in which Mr. Furnival wishes to present it to the Court ; and I do so with the less 
 reluctance, because no inconvenience can arise to the other party from this short 
 delay.' The cases which have been cited in the Court of (Queen's Bench of Straus 
 V. Francis (L. R. 1 Q. B. 379), and Rumsey v. King (33 L. T. N. S. 728), are cases 
 undoubtedly carrying this doctrine of a client being liound by the consent of liis 
 counsel to a very great length. I do not pretend to say to a greater length than 
 is proper, but certainly to the full length to which it can be carried. The client 
 being present and having full opportunity of knowing what was done, not object- 
 ing at the time, it was held that he could not object to those acts to which his 
 counsel agreed. Therefore, I entirely concur with what the Master of the Rolls 
 has said in the passage which Mr. Kokewich has pressed upon me, and I also 
 would desire to say this, that where there has been a misrepresentation on the 
 part of counsel, where the case has been complicated or difKcuIt, where either the 
 materials have not been sufficiently before tlie counsel, or being before him, he 
 does not fully comprehend them, or may be excused for not having comprehended 
 them, and consent has been given prejudicial to the client, I should entirely agree 
 with the observation of the Master of Rolls : ' If the co>insel says, I made a con- 
 cession under a misrepresentation, it never has been, and I trust it never will be, 
 the course of the Court to bind the counsel to that mistake.' I siiy precisely the same 
 thing in precisely the same terms, that if consent has been given under a mis- 
 apprehension, or from a misstatement, or want of materials, and if all the informa- 
 tion which counsel ought to have when he gives a consent is not before him, it 
 never has been the rule of this Court, and I trust it never will be the rule of this 
 Court that the unfortunate client should be bound by such misapprehension. 
 But here where the whole facts are stated in a page and a half, where the- counsel 
 who asks me to decide this do not pretend to say that they were not n possession 
 of every material fact which was necessary to their consent in the case, and the 
 Solicitors do the same, and the defendant himself was in the same jjosition, I 
 think if I were to accede to this application it would be a general license to parties 
 to come to this Court and deliberately to give their consent, and afterwards at 
 their will and pleasure come and undo what they did inside the Court, because on 
 a future day they find they do not like it. It appears to me that this application 
 is altogether groundless and unjustifiable, and I dismiss it with costs." 
 
 In Attorney-General v. Tomline, L, R. 7 Ch. D. 388, Fry, J., said :-"Now the 
 judgment was not drawn up until two or three weeks after it was delivered ; and 
 the interval between the pronouncing of a judgment by consent and it being drawn 
 up, gives an opportunity to a person who has consented to anything to ascertain 
 the true state of the facts, and he majr in that interval make an application to have 
 the juflgnieat varied. But, in my opinion, when a consent-order has been drawn 
 
APPEALS. 
 
 71 
 
 up, passed, and entered, it is not competent to this Court to vary that order, except 
 for reasons which would enable the Court to Het aside an agreement." 
 
 The Court has jurisdiction to discharcre an order made on an interlocutory appli- 
 cation by consent, when it is proved to have been made under a mistake, though 
 that mistake was on one side only. Where, on motion for a mandatory injunction, 
 an order was made by consent, pursuant to the terms of a previous agreement, hy 
 which the defendant gave an undertaking to remove certain obstructions, and it 
 appeared that the defendant had by mistake consented to a more extensive under- 
 taking than he intended to do, the Court refused to enforce that part of the under- 
 taking which had been given by mistake, MuUins v. Howell, L. R. 11 Ch. D. 763. 
 
 A compromise agreed to by pPTties in Court, after discussion of the case, with 
 the concurrence of their legal advisers and with the assent of the Court, cannot 
 irfterwards be varied on the mere allegation that the consent was given inadver- 
 tently, without evidence of mistake or misapprehension, Davis v. Davis, L. R. 13 
 Oh. D. 861. 
 
 Merchants' Bank v. Grant, 3 Ch. Ch. R. 64, is reported as follows:— "Mr. T. 
 Moss moved on petition to amend the decree in this cause. Mr. J. Hoskin, for the 
 defendant, urged that the decree had been made by consent, and that a consent 
 decree could not be amended or varied, and asked that the petition be dismissed 
 with costs. Mr. Moss, in reply, said that the decree was in one sense only a con- 
 sent one, it was consented that a decree for foreclosure should be made, but the 
 terms of it were not part of the consent." 
 
 A company or corporation may be bound by consent to an order, or by the com- 
 promise of an action or claim in the same way as a private person ; Bath's case, L. 
 R. 8 Ch. D. 334 ; Dixon v. Evans, L. R. 5 H. L. 606, 618. 
 
 In the case of infants the Court, thou{,'h it has power to sanction a compromise 
 on their behalf, see Hopgood v. Parkin, L. R. 11 Eq. 80, will not make a decree 
 affecting their interests, by arrangement, unless satisfied that it will be for their 
 benefit. 
 
 Power of Cotniscl and Solicitor to Compromise an Action. — As a general rule both 
 the solicitor in the action (not, however, it seems his clerks, unless specially author- 
 ized, see Hodson v. Drewery, 7 Dowl. Prac. Ca. 569), and counsel have power to 
 bind their client by a contract, or compromise, or abandonment of claim made in 
 Court, unless the compromise includes matters not within the scope of the action, 
 or their authority to compromise has been expressly restricted or prohibited, see 
 Strauss v. Francis, L. R. 1 Q. B. 379 ; Rumsey v. King, 33 L. T. N. S. 728 ; Butler 
 V. Knight, L. R. 2 Ex. 109 ; re Wood, 21 W. R. 104 ; Thomas v. Harris, 27 L. J. 
 Ex. 353 ; Prestwich r. Poley, 18 C. B, N. S. 806 (limiting and explaining Swinfen 
 V. Swinfen, 2 D. & J. 381; Fray y. Voules, 1 El. & E. 839) ; Pulling, 103 ; Cordery, 
 Solicitors, 54. 
 
 An agreement entered into by a solicitor that his client's suit should abide the 
 event of a certain other suit by the same plaintiff against another party, such agree- 
 ment being made without instructions from the client, who afterwards repudiated 
 it, Md, not to be binding on the client. An affidavit in answer to affidavits filed 
 in reply, filed after an enlargement of the motion was held regularly filed, and 
 allowed to be read, the Court offering to give the other party time to reply to it, 
 if he required to do so, Dewar v. Orr, 3 Ch. Ch. R. 224. 
 
 Motion to Commit. — A motion to commit a defendant for breach of an injunction 
 having been refused without costs, the defemlant appealed : — Held, that there is no 
 rule that a motion to commit, if refused, must be refused with costs, and that an 
 appeal as to costs in such a case will not be entertained, Hope v. Carnegie, L. R. 
 4Ch. App. 264. 
 
 Trustees. — An order that trustees shall pay the costs of a suit personally forms 
 no exception to the general rule that no appeal will be allowed for costs, Taylor 
 V. Dowlen, L. R. 4 Ch. App. 697, and see re Hoskin's Trusts, L. R. 6 Ch. D. 281, 
 and see O. L. r. 1, quoted supra. 
 
 Mortgagee. — The right of a mortgagee in a suit for redemption or foreclosure to 
 his general costs of suit, unless he has forfeited them by some improper defence or 
 other misconduct, is well established and does not rest upon the exercise of that 
 discretion of the Court which m litigious causes is generally not subject to review. 
 The contract between mortgagor and mortgagee as it is understood in this Court, 
 makes the mortgage a security, not only for principal and interest, and such ordi- 
 
 CD 
 
f*«» 
 
 \ ' 
 
 7* 
 
 JUDICATURE ACT. 
 
 nary charges and expenses as are usually provided for by the instrument creating 
 the security, but also for the costs properly incident to a suit for foreclosure or re- 
 demption. A decree therefore, in a redemption suit which disallows the costs of 
 the mortgagee, is of right appealable, and if appealed against, can only be sup- 
 ported by proof of special circumstances, sufficient to justify such a departurefrom 
 the ordinary course of the Court. That there may be such circumstances is un- 
 deniable ; the question is whether they exist in this case. Cotterell v, Stratton, 
 L. R. 8 Ch. App. 295, 302 ; see, also, re Rio Grande du Sud Steamship Co., L. R. 5 
 Ch. D. 282, and see O. L. r. 1, quoted supra. 
 
 Bankruptcy. — Rule applies to apjieals from decisions in bankruptcy. Ex parte 
 Ogle ; Ex parte Smith ; In re Pilling, L. R. 8 Ch. App. 711. 
 
 Construction of Decree. — If costs are given by a decree the question of what costs 
 are covered by the decree may be determined in appeal, Krehl v. Park, L. R. 10 
 Ch. App. 334. 
 
 Appeals upon questions of Costs.— 0. L. r. 1, is as follows : — Subject to the 
 provisions of the Act, the costs of and incidental to all proceedings in the High 
 Court shall be in the discretion of the Court ; but nothing herein contained shall 
 deprive a trustee, mortgagee, or other person of any right to costs out of a 
 particular estate or fund to which he would be entitled according to the rules 
 hitherto acted upon in Courts of Equity ; Provided that where any action or issue 
 is tried by a jury, the costs shall follow the event, unless upon application made at 
 the trial, fur good cause shewn, the Judge before whom such action or issue is tried 
 or the Court shall otherwise order. 
 
 No order except as to costs. — An injunction had been granted, and the plaintiff had 
 moved to commit the defendant for breach. Vice-Chancellor Bacon thereupon 
 made an order "That, the Court being of opinion that the defendant, B. Corcoran, 
 has committed ,a breach of the said injunction, and the plaintiff by his counsel 
 not pressing to commit the said defendant, this Court doth not think fit to make 
 any order on the said motion, except that the defendant do pay to the plaintiff, C. 
 P. Witt, his costs of this application, to be taxed by the taxing master." From 
 this order the defendant appealed. James, L. J. : — " It appears to me quite clear 
 that this case is not one in which there is no appeal. The Act says that there shall 
 be no appeal for costs where they are in the discretion of the Court, but there is no 
 discretion as to whether a man has or has not been guilty of something alleged 
 against him. The defendant says he has been guilty of nothing, and if the Court 
 had been of that opinion it could not have ordered him to pay the costs any more 
 than it could dismiss a bill and order the defendant to pay the costs of the suit. 
 The Court has made an adjudication, and, as a consequence of that adjudication, 
 has ordered the defendant to pay the costs. li the Court had thought that no 
 contemjjt had been committed, it could not have ordered the defendant to pay the 
 costs. The defendant must have a riglit to appeal against that adjudication," Witt 
 V. Corcoran, L. R. 2 Ch. D. 69, 70. 
 
 The plaintiffs moved to commit the defendant for contempt in having sold 
 certain property of the intestate in the cause in disobedience to an oi-flor that she 
 should deliver up to the receiver all property of the intestate in her hamln, but the 
 notice did not ask for restitution of the property. The Vice-Chancellor refuse' to 
 commit, and made the costs of the application costs in the action : — Held t' ^o an 
 appeal would not lie from this order, Ashworth v. Outram, L. R. 5 Ch. D. 943. 
 
 Dismissal of Bill without costs. — A Bill was dismissed by a Vice-Chancellor with- 
 out costs. The plaintiff appealed against the whole decree, and his ajjpeal was 
 dismissed : — Held that the Court had no power to vary the order of the Vice- 
 Chancellor by directing that the bill should be dismissed with cost^, Harris v. 
 Aaron, L. R. 4 Ch. D. 749. In Graham v. Campbell, (L. R. 7 Ch. D. 494) 
 James, L. J., delivering the judgment of the Court, said': — " The dismissal of a bill 
 without costs was pre-eminently the case to which the rule of not hearing appeals 
 for costs applied. And although, by reason of the cros" appeal and other matter 
 appealed from, we have had to hear the whole case, the provisions of the Judica- 
 ture Act do not, in our opinion, allow us to make that a ground for varying the 
 decree as to costs. The inquiry as to damages is a matter wholly collateral, and 
 the failure of the cross appeal leaves the defendant's appeal as to the suit an appeal 
 merely for costs." 
 
 Costs, charges and expenses. — An order gave a trustee his costs, charges and 
 expenses : — Held that this was not simply an order as to costs within the discretion 
 
f^ 
 
 APPEALS. 
 
 73 
 
 of the Court and was therefore aubjoct to appeal, re Chennell, Jones i'. Chennell, 
 L. R. 8 Ch. D. 492. 
 
 33. No appeal shall lie from the judgment or order of any Di- 
 visional Court or Judge of the High Court to the Court of Appeal 
 without the special leave of the Judge or Divisional Court whose 
 judgment or order ia in question, or of the Court of Appeal ; 
 unless the title to real estate or some interest therein or the 
 validity of a patent is affected; or unless the matter in contro- 
 versy on the appeal exceeds the sv. or value of $200, exclusive 
 of costs; or unless the matter in question relates to the taking 
 of an annual or other rent, customary or other duty or fee, or 
 a like demand of a general or public nature aflecting future 
 rights. 
 
 See R. S. O., c. 3«, s. 49 ; C. S. U. C, c. 38. s. 49 ; Imp. Act of 1873, s. 45. 
 
 Unless the title to real estate or some interest therein is affected. — These words differ 
 slightly from the words in the Act respecting the County Courts, R. S. O., c. 43, a. 
 18, which are "in which the title to land is brought in question." Under that 
 Statute there are the following cases in the Ontario Courts. Where in matters of 
 tort relating to personal chattels, title to land is brought in question though inci- 
 dentally, the County Court had no jurisdiction. Trainer v. Hobcombe, 7 Q. B. 548, 
 
 One H. sold to defendant timber standing on his land, and afterwards conveyed 
 and gave possession of the land to the plaintiff, the defendant i)roceeded to take 
 off the timber : — Held, that the title to land was not in question, and that an action 
 for trespass to the land would lie in the County Court, Bailey v. Bleecker, 5 W. 0. 
 L. J. N. S. 99. 
 
 Declaration for converting the plaintiff's dwelling house, with the doors and 
 windows, &c. Plea, that the goods were not the plaintiff's. At the trial in 
 the County Court, it appeared that the pi. 'ntiff claimed as assignee of a mortgage 
 of the land on which the house stood, and that the dispute was whether the house 
 was part of the freehold. A verdict having been rendered for the plaintiff, was 
 afterwards set aside, on the ground that the title to the land came in question, and 
 that the case should have been stopped upon the plaintiff's evidence : — Held, that 
 this was right, and the judgment below was affirmed, Portman ?■. Patterson, 21 Q. 
 7i. 237. 
 
 Title to land does not on mere suggestion, necessarily come in question under 
 a plea of not guilty by Statute. The general rule is that it must not only 
 be pleaded, but be verified by affidavit. In this case, which was an appeal from the 
 County Court :— Held, that though the defendant might have shewn, upon the plea 
 of not guilty, that for want of title tlie plaintiff could not maintain the action for 
 injury to his premises, yet that in the absence of such proof, or a twna fide tender 
 thereof, the mere suggestion if it did not preclude the County Court from trying 
 the real cause of action, which was within its jurisdiction, Ball v. The Grand Trunk 
 Railway Company, IG C. P. 252. 
 
 In ejectment in the County Court, under 23 Vic. o. 4.3, it appeared that the 
 defendant held the land under a verbal lease for a year, from 7th June, from one B., 
 with the arrangement that if B. sold, defendant would give up possession at the 
 end of the year. B. in January, sold to the plaintiff, of which defendant had notice, 
 and promised to give up possession, and the plaintiff gave defendant a notice to 
 quit on 8th June, his term having expired. At the trial, the deed from B. to the 
 
 Slaintiff, and the notice to quit, were proved : — Held, a case within the Statute, that 
 efendant's term was put an end to on the 7th June and that there was no dispute 
 as to title to exclude the jurisdiction, which was clearly not ousted by the mere proof 
 of the plaintiff's paper title, Neads v. McMillan, 29 Cj. B. 415. 
 
 A County Court Judge, at the trial of a case upon the application of plaintiff's 
 counsel, struck out a count of the declaration and all pleadings relating thereto, be- 
 cause the pleadings thereunder ousted his jurisdiction by bringing title to land in 
 question :— Held, that he had the power to do ao, Fitzsimmona r. Mclntyre, 5 P. R. 
 
 r 
 S 
 
 i^^ll; I 
 
ft I-' 
 
 74 
 
 JUDICATURE ACT. 
 
 Declaration, that one A. devised the N. i of lot 16 to his son W. in fee, and the 
 S. ^ to his wife, J., for life, and i^ter death to W. in fee ; that during W's life, he 
 and his mother, J., leased to the defendant the whole lot for five ^ears at an annual 
 rent, and W. died soon after, having devised his land to the plaintiffs in fee, and the 
 plaintiifs claimed from defendant a portion of the first year's rent, which they al- 
 leged they were entitled to, and which the defendant had paid to J. after notice. 
 Equitable plea, that W. by his will devised all his lands to the nlaintiff in trust for 
 the sole benefit of J., during her life, under which she claimea and received from 
 them the rent : — Held, that upon these pleadings the title to land was brought in 
 question, and the jurisdiction ousted. Fair et al. v. McCrow, 31 Q. B. 599. 
 
 "Exceeds the sum or value of $200." — The cases shewing the construction placed 
 upon somewhat similar words in the Act respecting County Courts, Con. Stat., 
 L. C. C. 15, 8. 34, will be useful in construing these words. That Act after pro- 
 viding in sub-sec. 1 for partnership cases, in sub-sees. 2-5 for administration suits, 
 in sub-sec. 6 for foreclosure or sale suits, in sub-sec. 7 for redemption suits, provides 
 in sub-sec. 8 that the County Courts shall have jurisdiction " where the subject 
 matter involved does not exceed the sum of .$200." The present Act makes no 
 special provision for any class of cases, but provides that there shall be no appeal 
 " unless the matter in controversy or the appeal exceeds the sum or value of $2U0." 
 
 In a creditor's suit to obtain payment out of land fraudulently conveyed away, the 
 amount due to the plaintiff is the test, and not the value of the property, Forrest 
 V. Laycock, 18 Gr. 611. 
 
 Prima facie the sum realized in a sale under a power contained in a mortgage 
 in the subject matter of the suit. A mortgagee exercised the power of siue 
 contained in his security and realized $350. In a bill filed by the mortgagor 
 for an account, it appeared that, after deducting the amount due on the mort- 
 gage at the time of sale, together with the costs of the sale and of an action of 
 ejectment, as also a payment made to the plaintiff before suit, the balance coming 
 to the plaintiff was reduced to $130, the plaintiff was still held entitled to his full 
 costs—" the subject matter involved " being $350, McGillicuddyt;. Griffin, 20 Gr. 81. 
 
 In a suit by a purchaser asking specific performance of an agreement for the sale 
 to him of lands at the sum of $150, it appearing that the plaintiff had subsequently 
 erected a house upon the land, increasing its value to more than $200, it was held 
 that the value of the land at the time of the filing of the bill was the criterion, 
 and not the amount remaining due to the defendant, which was less than $200, 
 Kennedy v. Brown, 6 P. R. 318. 
 
 See Seath v. M'llroy, 2 Ch. Ch. , R. 93 ; Hyman v. Roots, 11 Gr. 202 ; Goldsmith 
 V. Goldsmith, 17 Gr. 213, and also Cotterell v. Stratton, L. E. 17 Eq. 543 ; Paddon 
 r. Wfnr'., L. R. 20 Eq. 449. 
 
 '^"-Al , case there has been no difference of opinion among 
 i : o »3 1 Ji VJ.S of the Divisional Court as to any order of such court, 
 o --r ,n a motion to set aside or discharge a rule, order, or 
 decision oi a Judge, the order of the Divisional Coi'rt did not 
 substantially vary the rule, order, or decision moved against, 
 no appeal shall lie from the order of the Divisional Court of 
 the High Court to the Court of Appeal without such leave as 
 aforesaid, unless the title to real estate or some interest therein 
 or the validity of a patent is affected ; or unless the matter in 
 controversy on the appeal exceeds the sum or value of $500, 
 exclusive of costs ; or unless the matter in question relates to 
 the taking of an annual or other rent, customary or other duty 
 or fee, or a like demand of a general or public nature affecting 
 future rights. 
 
 See R. S. O., c. 38, s. 49; C. S. U. C, c. 38, s. 49; Imp. Act of 1873, s. 45; see 
 notes to preceding section. 
 
v 
 
 APPEALS. 
 
 76 
 
 35. There shall be no appeal to a Divisional Court from 
 any interlocutory order, whether made in Court or Chambers, 
 in case before the passing of this Act there would have been 
 no relief from a like order by an application to a Superior 
 Court; and there shall be no appeal to the Court of Appeal 
 from any interlocutory order in ease before the passing of this 
 Act there would have been, no relief from a like order by an 
 appeal to the Court of Appeal. Any doubt which may arise 
 as to what decrees, orders, or judgments, are interlocutory, 
 shall be determined by the Court of Appeal. 
 
 See Imp. Act of 1875, s. 12. 
 
 Interlocutory Order.— An order givinp leave to sign judgment upon a specially 
 en lorsed writ is an interlocutory order, Standard Discount Company v. La Grange, 
 L. R. 3 C. P. D., 67 ; so also is an order made in pursuance of an interj)leader 
 issue, Mc Andrew v. Barker, L. R. 7 Ch. D. 701. James, L. J., speaking for the 
 Judges of the Court of Appeal, L. R. 1 Ch. D. 41, said that, without at jiresent 
 settling what was an interlocutory order, the Court had determined that all sum- 
 monses which finally settled the rights of parties, such as summonses under wind- 
 ing-up orders, or in administration suits would be heard by the full Court of 
 Appeal. 
 
 An order overruling a demurrer is not an interlocutory order, Trowell r. 
 Shenton, L. R. 8 Ch. D. ;U8. 
 
 Where an order embraces a final decree as well as an interlocutory order, see 
 Cummins v. Heron, L. R. 4 Ch. D. 787 ; White v. Witt, L. R. 5 Ch. D. 58'J. 
 
 An order made on an appeal from a master's report is an interlocutory order, 
 Brigham v. Smith, 3 Cli. Ch. R. 318. 
 
 The decision of the High Court upon a special case stated for its opinion by an 
 arbitrator, who is thereuiton to make his award, is an interlocutory order, Collins 
 V. The Vestry of Paddington, L. R. 5 C^. B. D. 308. 
 
 An order varying the certificate of the chief clerk is an interlocutory order, 
 White V. Witt, L. R. 5 Ch. D. 589. 
 
 An order made on an application by a creditor in an administration suit claim- 
 ing the proceeds of the sale, was held to be an interlocutory order, although finally 
 determining the rights of the parties, Pheysey v. Pheysey, L. R. 12 Ch. D. 305. 
 
 When in an action in the Chancery Division, tried by a Judge without a jury, 
 definite issues of fact are settled at the commencement of the trial, the Judge's 
 finding on the facts is an interlocutory order, Lowe v. Lowe, L. R. 10 Ch. D. 432. 
 
 _ In an action for an injunction to restrain defendant from building so as to interfere 
 with a right of way claimed by the plaintiff, which right was disputed, the Master 
 of the Rolls found a verdict for the plaintiff as to the right of way, but directed 
 the action to stand over. It was held that the verdict as to the right of way was 
 equivalent to an interlocutory order, Krehl v, Burrell, L. R. 10 Ch. D. 420. 
 
 An order in a winding up case directing payment of a certain amount to an 
 official liquidator was held not an interlocutory order, In re Stockton Iron Furnace 
 Company, L. R. 10 Ch. D. 335. 
 
 Judgment by default in an action on a replevin bond is final and not interlocu- 
 tory, Dix V. Groom, 49, L. J. C. L. 430. 
 
 The words "interlocutory order" are not confined in their meaning to an 
 order made between writ and final judgment, but mean an order other than final 
 judgment in an action, whether such order be made before judgment or after. 
 Smith V. Cowell, L. R. 6, Q. B. D. 75. 
 
 An order of the Judge at the trial depriving the successful party of his costs 
 not an interlocutory order, Marsden v. Lancashire and Yorkshire Railway Com- 
 pany, W. N. (1881) 46. 
 
 r 
 > 
 
76 
 
 JUDICATURE ACT. 
 
 36. Save as aforesaid, every rule, order, or decision made 
 by a Judge of the said High Court in Chambers, except 
 orders made in the exercise of such discretion as by law be- 
 longs to him, may be set aside or discharged upon notice by 
 any Divisional Court ; and no appeal shall lie to the Court 
 of Appeal from any such rule, order or decision, unless by 
 special leave of the Judge by whom the same was made or of 
 the Divisional Court aforesaid or of the Court of Appeal. 
 
 See Imp. Act of 1873, s. 50; R. S. 0., c. 38, s. 16 j c. 39, s. 22; c. 50, s. 281, sub-s. 
 2; Bee. 15, ante; Order LIV., post. 
 
 Ill the exercise of such discretion as hy law belongs to him. — In the Imp. Act, 1873, 
 sec. 50, the exception is of "orders made in the exercise of such discretion as 
 aforesaid," This refers to the words in the preceding section: "No order .... 
 as to costs, which by law are left to the discretion of the Court. " 
 
 As to appeals in cases of the exercise of discretion as to costs, see notes to sec. 
 32. Tho law prior to this Statute was that there was no appeal from a decision on 
 a qtiestion which is, by the practice, purely within the discretion of the Court, 
 Chard v. Meyer.s, 3 Ch. Ch. K. 120 ; and see R. S. 0., c. 38, s. 18, sub-s. 3. 
 
 The rij,'ht of appeal from the Court of Chancery was confined to orders or decrees 
 made in a cause pending between parties. Where, therefore, an appeal was made 
 from an order directing the taxation of a solicitor's bill of costs against his client 
 in a particular mode, the Court of Appeal dismissed the appeal with costs, re Free- 
 man, Craigie & Proudfoot, 2 Gr. E. & A. 10!). 
 
 37. Save as aforesaid and subject to the other provisions of 
 this Act, any rule, order or decision of a Judge in Court may 
 bp appealed against to the Court of Appeal. 
 
 See Imp. Act of 1873, ss. 18, 19, 50 ; ante, s. 13 ; post, s. 34 ; post. Order 54. 
 
 This section enlarges the classes of cases in which appeals can be instituted. 
 The jurisdiction of the Court of Api>eal pfior to this Act was limited by R. S. 
 O., c. 38, s. 18. It is as follows: — "The Court f.hall have an appellate jurisdiction 
 in lioth civil and criminal cases ; and appeal shall lie thereto from every judj^'ment 
 of any of the Superior Courts, or of a Judge sitting alone as and for any such Courts, 
 in a cause or matter depending in any of the said Courts, or under any of the 
 powers given by 'The Administration of Justice Act,' including judgment: — 
 
 "{a) Upon any case stated by an Arbitrator, or upon any appeal authorized by 
 law from the decision of any Arbitrator or Referee, or upon any motion to set aside 
 or refer back an award. 
 
 " (b) Upon any motion for the issue of a writ of mandamus, or upon any question 
 arising upon the return of such writ ; and 
 
 "(f) Upoutany application for a rule to quash a by-law of a municipal council 
 in whole or in part, whether a rule nisi has been refused, dischargee!, or made 
 absolute. 
 
 "2. No other appeal from a decision of either of the Superior Courts of Law 
 shall be allowed unless the judgment, decision, or other matter appealed against 
 appears of record. 
 
 "3. Where a new trial is granted or refused upon matter of discretion only, as on 
 the ground that the verdict is against the weight of evidence or otherwise, no appeal 
 shall be allowed. " 
 
 38. No appeal to the Court of Appeal shall be allowed 
 unless notice thereof is given in writing to the opposite party 
 and to the Clerk of the Crown and Pleas, or Registrar of the 
 
T"T1 
 
 APPEALS. 
 
 77 
 
 proper Court, within one month after the judgment com- 
 plained of, or within such further time as the Court appealed 
 from, or a Judge thereof, may allow; nor unless within 3 
 months after the judgment complained of or within such 
 further time as the Court or Judge aforesaid may allow, the 
 appellant gives proper security to the extent of $400 to the 
 satisfaction of the Court appealed from, that he will effectually 
 prosecute his appeal, and pay such costs and damages as may 
 be awarded in case the judgment appealed from is in whole 
 or in part affirmed. 
 
 This section is a re-enactment of R. S. O., c. 38, s. 2G, except that the worda 
 "nor unless within three months after thejjiidgment complained of, or within such 
 fiu^ther time as the Court or Judge aforesaid may allow, the appellant gives pro- 
 per security," are substituted for the words "nor until the appellant has given 
 proper security. " 
 
 Under the Rev. Stat., however, the word "judgment " probably meant, not the 
 judgment which was entered in the cause, but the judgment which was delivered 
 by the Judge, Rose v. Hickey, 7 Pr. R. 390. In this Act, however, the word 
 judgment is to include decree (sec. 91 ), and its meaning in this section may be the 
 entering up of the judgment, or the issuing of the decree. See G. 0. Chy., 
 Orders, 324, 325. 
 
 Time for appealing — Refusal of Application at Trial for leave to amend Plead- 
 ings.— At the trial of an action. Fry, J., refused an applicatiim made by the 
 defendant's counsel at the Bar, for leave to amend the statement of defence, and 
 His Lordship gave judgment for the plaintiff. In the judgment as drawn up there 
 was inserted, at the express request of the defendant, a recital of the aitplication 
 for leave to amend, and a statement that the Court had refused it. The defendant 
 gave notice of appeal from the judgment, stating the effect of it in his notice, but 
 not referring in any way to the application for leave to amend. The Court 
 held that the refusal of leave to amend having taken place at the trial, it 
 formed part of the judgment, and the appeal from the judgment included an 
 appeal from the refusal. The Court of Appeal would have full ])ower to give 
 leave to amend on the hearing of the appeal, if they should be of oi)ini(m that 
 the leave had been wrongly refused. Jessel, M. R., added that it was contrary to 
 the practice to mention the refusal of the application for leave to amend in the 
 judgment, Laird v. Briggs, W. N. (1881) 30. 
 
 Leave to Appeal after time expired.— On an application for leave to a] )peal after 
 the expiry of the proper time, "the grounds for relief must be such as to satisfy 
 the Judge that the delay was caused by special circumstances which woidd mal<e 
 it unreasonable to impute it to negligence on the part of the appellant, and which 
 would deprive the respondent of reasonable ground for complaining that, by allow- 
 ing further time, he has, in an arbitary manner, been deprived of the advantage 
 of his position," per Patterson, J. A.., in Jarvis v. Stinson, Feb., 1879. 
 
 In Mc Andrew v. Barker, L. R. 7 Ch. D. 705 the Master of the Rolls said : " The 
 Court has no discretionary power to deprive a litigant of any advantage given him 
 by the General Orders unless there has been, on his part, some conduct raising 
 an equity against him," and see re Mansel, Rhodes v. Jenkins, T-. R. 7 Ch. D. 711. 
 This language was, however, disapproved of in re Blyth and Young, L. R. 13 Ch. 
 D. 416, where James, L. J., said " With regard to McAndrew v. Barker, I wish to 
 say that I think it was a little too strong to say that the Court has no discretionary 
 power to enlarge the time for appealing unless there has been conduct on the part 
 of the respondent raising an equity against him. The Court did not intend to lay 
 down a positive rule in every ca^e ; it was not intended, for instance, to apply to 
 the case of inevitable accident." 
 
 In Craig v. Phillips, L. R. 7 Ch. D. 249, it was held that the mere fact that the 
 Court of Appeal had come to a different opinion upon a doubtful point of law was 
 not sufficient reason for enlarging the time for appealing. 
 
 if 
 
 •^: IS I 
 
 f PI' 
 
 
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 f'i 
 
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 n ? 
 
 11 
 
 ( 1 ' 
 
 78 
 
 JUDICATCJRE ACT. 
 
 Sii/> p/ So//fi/(>r. —The authorities are far from conflistent upon the question as 
 to whether a slip upon the part of a solicitor will be a sutBcient ground upon which 
 to apply for leave to appeal after the usual time has expired. In all such cases the 
 f,Tantmg of the order la in the discretion of the Judge applied to, and some of the 
 Judges incline to strictness and some to indulgence. In the International Finan- 
 cial Society v. Moscow Gas Company, L. R. 7 Ch. D. 241, it was held that the 
 mere fact that an appellant has misconstrued one of the rules, and by reason of 
 such mistake has omitted to bring his appeal in time, is not a sufficient ground for 
 enlarging tho time for appeal, and see Rhodes v. Jenkins, L. R. 7 Cn. D. 711 ; 
 Highton V. Treherne, W, N. (1878), 227. In the Ambrose Lake Tin and Copper 
 Company, L. K. 8 Ch. D. 643, however, a contributory, on the 29th of March, 
 being twenty-one days from the pronouncing of a refusal to remove his name from 
 the list, gave fourteen days' notice of appeal. On the Ist April, conceiving that 
 he ought to have given only a four days' notice, he withdrew his notice of appeal, 
 and on the following day gave a four clays' notice of appeal. On the hearing of the 
 appeal, the objection was taken that it was too late : — Held, that the time ought to be 
 extended. Thesiger.L. J. ,in giving judgment,8aid: " In my jud^ent,the fact adver- 
 ted to by Lord^Justice Cotton, makes a very material distinction between this case 
 and'the Moscow Gas Company's case.upon which reliance has been placed. There the 
 party had allowed the whole of the year to elapse, and he then found that he had 
 made a mistake, and was just beyond the year. There, if I may use the expres- 
 sion, nothing had been rightly done within the period. Here, undoubtedly, a 
 proper notice was given within the period of twenty-one days. 
 
 In re Sceptre and Licensed Victuallers' Fire Insurance Company , W. N. (1879) 6, 
 a letter advising of an intention to appeal had been written, but no notice given 
 within the proper time. Upon a motion for leave to appeal the letter was admit- 
 ted but there was no affidavit or any other special circumstance. It was suggested 
 that the delay arose from a mistake of the solicitor. James, L. J., said that in 
 in his opinion no special circumstances had been shewn. It had been expressly 
 decided that a mere mistake of the solicitor as to the practice was not sufficient. 
 But here there was no affidavit at all as to the circumstances. Baggallay, L. J., 
 concurred. Bramwell, L. J. , agreed that no reason had been shewn for granting 
 an indulgence in the present case ; but said that he should be differing from an 
 opinion which he had often expressed if he did not say that when he was satisfied 
 that a mistake had been made, and that there was no mala fides, and that no injury 
 had been done to the other side which could not be compensated by payment of 
 costs or otherwise, he thought an indulgence ought to be granted ; but there were 
 decisions on the point which could only be altered by the House of Lords. 
 
 In Winnett v. Renwick, 6 P. R. 233, Blake, V. C, said :— " The only ground 
 on which the application is supported is that through ' an oversight and inadvert- 
 ence on the part of the solicitor of the defendant, the time for rehearing was al- 
 lowed to pass.' It is true that in some cases the Court looks at the fact that the 
 reason for asking an indulgence arises from the act of the solicitor and not of the 
 client, and, where an injury of a serious nature would then arise to the party 
 applying, relaxes rules and orders which would otherwise be the means of working 
 a great wrong. But, although this is an element for consideration where an appli- 
 cation of this nature is made, I do not think, standing alone, that it affords a suf- 
 ficient reason for granting such an order as that asked. Very special circumsta .ces 
 from time to time arise, when it may be proper to make an exception in favour of 
 an applicant ; but where these are not presented to the Court, if the client is ag- 
 grieved through the ' oversight ' or ' inadvertence ' of the solicitor, the injury re- 
 ceived must be arranged between the client and his solicitor, and cannot be made a 
 reason for the other party to the litigation being kept before the Court another six 
 months, and having the enjoyment of the right, to which he has been declared en- 
 titled, postponed for this period." 
 
 In Gordon v. Great Western Railway Company, 6 P. R. 300, Harrison, C. J., 
 said : — "The delay in the application here is about a month after the expiration of 
 the fourteen days allowed by the Statute for that purpose. The ground alleged is 
 that there was an ' oversight.' But it is not stated whose oversight it was ; nor is 
 the oversight in any manner explained or excused. Assuming that the oversight 
 was that of the solicitor for the defendants, Watson v. Lane 25 L, J. Ex. 240, is an 
 authority to shew that the ground alleged is not sufficient for the granting of the 
 application. However, if the case were one involving a difficult question of law. 
 and one about which the two Superior Courts of Law were at variance, I shoula 
 feel inclined to grant the relief asked, although the affidavits are anything but 
 aatisfaotory." 
 
APPEALS. 
 
 n 
 
 In Burgoine v, Tavlor, L. R. 9 Ch. D. 1, a defendant was not reprenented at the 
 trial, because his solicitor had watched, through mistake, the list of the wrong 
 Judge :— Held by Fry. J., that the solicitor had been guilty of gross negligence, 
 and that the judgment which had been given for the plaintiff could not lie set 
 aside. On appeal, however, this judgment was overruled, Jessel, M. R., saying:— 
 " We think that the order asked for by the defendant ought to be made. Solicitors 
 cannot, any more than other men, conduct their business without sometimes mak- 
 ing slips ; and where a solicitor watches the list, and happens to miss the case, in 
 consequence of which it is taken in his absence, it is in accordance with justice 
 and with the course of practice to restore the action to the paper, on the terms of the 
 party in default paying the costs of the day, which include all costs thrown away 
 by reason of the trial becoming abortive. As a general rule, sol.'citors in my 
 branch of the Court consent to such an order as is now asked, and that- such an 
 application should be opposed is to me a novelty; still, as the defendant was in 
 default, he must pay the costs of the application to the Court below, but no costs 
 of the appeal." 
 
 In Gould V. Rich, 8 P. R. 343 (note), vacation had been extended until 1st Sep- 
 tember, and the solicitor supposing that the vacation ran for all purposes, and that 
 he had till after 1st Septemoer to set down the appeal from the rejmrt, did not set 
 the same down. On discovering his error he applied before the time had elapsed 
 when the case would have been argued, had it been set down properly, fci- leave to 
 set it down nunc pro tunc, or for time to be extended. The referee allowed the 
 application. Hoyles appealed. On appeal, Spragge, C, reversed the order of the 
 referee. 
 
 In Dumard v. McLeod, 8 P. R. 343, where a solicitor's clerk, through forgetful- 
 ness, neglected to set down an appeal as required by 6. 0. 642, the Referee refused 
 to extend time for appealing; and, on appeal, Spragge, C, upheld his ruling. 
 The case of Burgoine v. Taylor (««/*) having been cited, Spragge, C, remarked 
 upon the variableness of the recent English practice, and declined to follow the 
 case. He held, that as the ultimate object of this motion was to secure the 
 dismissal of the plaintiff's bill, he did not feel bound to grant to defendant the 
 indulgence asked. 
 
 See also the judgment of Spragge, C, in Rose v. Hickey, 7 P. R. 390, where the 
 stricter rule, as laid ^own in tne cases in L. R. 7 Ch. \>.(ante\ having been citud, 
 that learned Judge said : — " The rule established in the English cases cited by Mr. 
 Hoyles is no doubt a wholesome one, and I am in favour of its being adopted in its 
 spirit here." 
 
 See also Finkle v. Date, 7 Pr. R. 413 ; Robertson v. Robertson, 7 Pr. R. 418, and 
 the earlier cases; Tyler v. Webb, 3 Ch. Ch. R. 33; Fleming v. Duncan, lb,, h'\ ; 
 Romanes v. Fraser, lb. 53 ; Cameron v. Wolf Island Canal Company, lb. 54 ; But- 
 ler V. Church, lb. 91 ; Chard v. Meyers, lb. 120, Duff v. Barrett, lb. 318 ; David- 
 son V. Boomer, lb. 375 ; re MuUarky, McAndrew v. Laflamme, 6 Pr. R. !t5 ; 
 Caisse v. Burnham, lb. 201 ; Winnett v. Renwick, lb. 233 ; Nash v. Glover, lb. 2(57 ; 
 Gordon v. Great Western Railway Company, lb. 300 ; Rowe v. Wert, 7 Pr. R. 252. 
 
 f te 
 
 39. Save as aforesaid, appeals from the judgments of the 
 High Court or a Judge thereof in civil eases, shall be within 
 the same time and in the same manner and with the same 
 effect as heretofore from like judgments of the Superior Courts 
 or of a Judge thereof. 
 
 See R. S. O., c. 38, ss. 45—48. 
 
 The times heretofore allowed for appealing to the Court of Appeal have been as 
 follows :— All appeals from a judgment, decision, rule or order of eitner of the Superior 
 Courts of Law, shall be brought to hearing within one year after the giving of the 
 judgment, decision, rule or order appealed from, or after the entry of the judgment 
 m respect of which error is alleged, or within such further time as the Court of 
 Appeal may allow, R. S. O., c. S^, s. 45. In case of an appeal from the Court of 
 Gnancery, the appellant shall bring the same to a hearing if the appeal is from a 
 decree or decretal order, within one year from the pronouncing tnereof ; and if 
 the appeal is from an interlocutory order, not being a decretal order, then within 
 
I ,! 
 I I i 
 
 \V\ 
 
 80 
 
 JUDICATURE ACT. 
 
 six months from the pronouncing of the same, or within such further time in either 
 case as may be alldwed for the purpose liy the Court of Appeal, upon special 
 grounds shewn to the satisfaction of the Court or Judge granting f ) same, /*. 
 B. 46. The time limited for ajmealing from a decree or order, which, under any 
 General Orders of the Court of Chancery, does not become absolute upon the same 
 being pronounced, shall be computed from the time when the same does become 
 absolute, //>. s. 47. In cases not otherwise provided for, an api)eal against any 
 judgment shall be commenced and prosecuted with effect within one year after 
 Judgment has been entered of record, given or completed, /#. s. 48. 
 
 As to what are interlocutory orders, see notes to sec. 32. 
 
 Dec re till Orders.— Jn a case of Leaming v. Woon, decided by Mr. Justice Mor- 
 rison/ on 8th March, 1881, the defendant, Mary Gurley, was entitled to a life-estate 
 in tlie property in question, consisting of realty and personalty under the will of her 
 deceased husband, the plaintiff was a remainder man, and filed his bill to have a re- 
 ceiver appointed on the ground that the estate was being wasted. By the decree on 
 further directions a receiver was appointed, and he was ordered to pay to the defend- 
 ant, Mary Gurley, the net annual income of the estate. In an action-at-law the 
 Canadian Bank of Commerce recovered a judgment against Mary Gurley for about 
 $5W), upon which they issued a yf . /a. against goods and the sheriff returned the 
 writ nit//(i boiia. They thereupon filed a petition in this cause against Mary 
 Gurley, and the receiver alleging that they were prevented by the appoinment of 
 the receiver from recovering upon their judgment at law, and they prayed for an 
 order directing the receiver, out of the first income in his hands, payable to Mary 
 Gurley, to pay their debt. This petition was dismissed with costs by the Court of 
 Chancery in June, 1880. Notice of appeal was duly served and filed under the 
 Statute, but no steps were taken towards the prosecution of the appeal until Feb- 
 ruary, 1881, when security was given and a draft case and reasons for appeal were 
 served upon the solicitors for Mary Gurley. They objected that the order appeal- 
 ed from not being a decretal order the time to appeal under the Statute had passed, 
 and asked to have the appeal dismissed with costs, but Morrison, Justice, refused 
 so to hold and directed that the appeal proceedings should be allowed to be 
 prosecuted without prejudice to the right of the respondent to take that objection 
 before the full Court. 
 
 In re Markham, Markham 7*. Markham, L. R. 16 Ch. D. 1, leave was given, 
 ix parte, to a person interested in, but not a party to an action, to appeal from an 
 order. 
 
 The following are the General Orders of the Court of Appeal, which were pro- 
 mulgated on 30th March, 1878 : — 
 
 I. Upon, from and after this date, all Rules and Orders heretofore made, and 
 now in force regulating the practice and proceedings in civil causes in this Court 
 are annulled, except the rules now in force respecting appeals to Her Majesty in 
 Privy Council ; and the following Orders made under the authority of the Court 
 of Appeal Act are substituted for the same. 
 
 II. Unless otherwise especially ordered by the Court apjtealed from or a Judge 
 thereof, the security required by sections 26 and 27 of the said Act shall be personal 
 and by bond, and may be in the form given in the Appendix, mutatis mutandis. 
 (Form A) : Provided that in any case in which execution may be stayed on the 
 giving of security under section 27, such security may be given by the same instru- 
 ment whereby the security prescribed in section 26 is given. 
 
 III. The bond shall be executed by the appellant or appellants, or one or more 
 of them, and by two sufficient sureties, unless such Court or Judge shall think fit 
 to dispense with the execution thereof by the appellant. 
 
 IV. When the judgnaent appealed from directs the payment of money, the 
 security required by section 27, sub-section 4, shall be in double the amount so di- 
 rected to be paid ; provided always that, in cases where the security to be given 
 shall be in a sum above two thousand dollars, it shall be in the discretion of the 
 Court appealed from, or of a Judge thereof, to allow security to be given by a larger 
 number of sureties, apportioning the amount among them as shall appear reason- 
 able ; and provided further, that, where the amount by the judgment directed to 
 be paid exceeds $10,000, it shall be in the discretion of such Courtor Judge to allow 
 security to be given for such amount less than double as shall appear reasonable. 
 
COURT OF APPEAL RULES. 
 
 81 
 
 V. When the judgment appealed from directs the sale or delivery of poRsession 
 of real i)roperty or chattel ; real, the security required by section 27, sub-section 3, 
 shall be taken in double the yearly value of the property in question, unless the 
 Court appealed from or a Judge thereof shall otherwise direct. 
 
 VI. The narties to every such bond as sureties shall by affidavit respectively 
 make oath tnat thoy are resident householders or freeholders in Ontario, and 
 severally worth the sum mentioned in such bond, over and above what will pay 
 and Hatisfv all their debts ; and such affidavit may be in the form given in the Ap- 
 pendix. (Form B.) 
 
 "VII. The bond with an affidavit of the due executicm thereof, and affidavit of 
 justification shall be deposited with the clerk or registrar of the Court appealed 
 from in Toronto, and sliall be deemed to be perfected and allowed, unless, within 
 fourteen days after being served with notice tliereof, the respondent shall move for 
 its disallowance. 
 
 VIII. Tho appellant may, after such deposit, make a special application before 
 the expiration of fourteen days to stay execution in any of the oases Mentioned in 
 section 27 of the said Act. 
 
 IX. After the security has been perfected, the appellant shall prepare a draft 
 of the case mentioned in the .'^Ist section of the said Act, and shall submit such 
 draft to the respondent, who shall return the same within four days, with his mr di- 
 fications or suggestions, and in the event of difference, the appellant shall give two 
 days' notice of an application to the Court or Judge, to settle tne case, in pursuance 
 of the said section ; and if in the opinion of the Court or Judge such application was 
 occasioned by the unreasonable conduct of either party, such party may be ordered 
 to pay the costs thereof. 
 
 X. Where the case has been settled by the parties themselves, no costs shall be 
 taxed, either between party and party, or solicitor or attorney and client, for any 
 matter stated in the case, which was not reasonably necessary to raise the question 
 in appeal. 
 
 XI. The appellant shall serve his reasons of appeal along with and as part of 
 the draft case mentioned in the Dth order, and the respondent shall serve hia 
 reasons against the appeal, within ten days from such service, or within such 
 further time as a Judge of the Court of Appeal may allow. 
 
 XII. If the appeal is from a part only of the judgment, the reasons of appeal 
 shall specify the part. 
 
 XIII. If the respondent shall neglect to serve reasons against the appeal, 
 the Court may hear the appeal ex parte, and give judgment thereon without tne in- 
 tervention of the respondent. 
 
 Xiy. Upon being served with the respondent's reasons against the appeal, or 
 upon his having made default in service thereof, the appellant shall cause appeal 
 books to be printed containing the case as settled by the parties or the Judge, and 
 the reaso'is for the appeal, and the reasons against the appeal, if such latter reasons 
 have been served as aforesaid, and any notice given under the 16th of these orders, 
 and forthwith deliver one of such copies to the registrar by whom the same shall 
 be filed as the stated and settled case, and ten copies for the use of the Judges and 
 officers of the Court. 
 
 XV. The respondent may after such book has been delivered to the registrar, 
 apply to a Judge of the Court of Appeal for leave to serve his reasons upon aflB- 
 davit accounting for the delay, and such leave may be given upon such terms as 
 the Judge may think proper. 
 
 XVI. A cross appeal shall not under any circumstances be necessary, but if a 
 respondent intends upon the h ^aring to contend that the decision should oe varied, 
 he shall with his reasons against the appeal give notice of such contention to any 
 parties who may be afifected by such contention, and such notice shall concisely 
 state the grounds of such contention in the same manner as reasons of appeal are 
 stated. The omission to give such notice shall not diminish the powers conferred 
 by the Act upon the Court of Appeal, but may in the discretion of the Court be 
 ground for an adjournment of the appeal or for a special order as to costs. 
 
 _XVII. The reasons for and against the appeal shall contain a statement of the 
 pomts of law intended to be argued, and the authorities relied upon. 
 
 XVIII. The appeal books shall be printed on paper of good quality, on one 
 side of the paper only, and in demy quarto form with pica type leaded or small 
 
 6 
 
 m 
 
 i 
 
 (A 
 
 p 
 
 > 
 
82 
 
 JUDICATURE ACT. 
 
 n 
 
 pica type leaded, and every tenth line of each page shall be numberrd in the mar- 
 gin. An index to the pleadings, evidence and other principal matters shall be 
 added ; but the opinions of the Judges of the Court appealed from shall not be 
 printed where the same have been already issued in the regular reports, but a 
 reference to the same shall be given in the appeal books, and shall be sufficient. 
 Tho style of the cause in the Court below shall be used and retained in the appeal 
 book and in every proceeding in this Court, the designation "appellant" or 
 "respondent" being added, e.g.: 
 
 Bktween a. B., [respotuient), Plaintip, 
 
 AND 
 
 C. D. , (appellant), Defendant. 
 
 XIX. The registrar shall not file the case without the leave of a Judge, if the 
 preceiling order has not been complied with. 
 
 XX. If the press has not been carefully corrected the Court may disallow the 
 costs of printinij, or m ly decline to hear the appeal, and make such order as to 
 postponement and payment of cost^ as may seem just. 
 
 XXI. The printed case and the copies thereof for the use of the Court shall be 
 delivered to the registrar within thirty days after the allowance of the security, 
 unless the time shall be extended by the Court of Appeal or a Judge ; and in case 
 of neglect or omission by the appellant to comply with this rule the respondent 
 may apply to a Judge upon two days' notice to the appellant for an order dismis- 
 sing the appeal as for want of prosecution, and the Judge may thereupon make 
 such order as to dismissing the appeal or otherwise as may appear just. [For form 
 of tntry of appeal see Form No. 92 in Judicature Act.] 
 
 XX I I. Appeals sh ill be entered by the registrar upon the list for hearing at 
 tVie next regular sitting:* of the Court, which shall commence at least eight days 
 after the receipt by him of the printed copies ; and the appellant shall serve the 
 respondent or such respondents as are directly affected by the appeal with notice 
 of hearin,^ at least seven days before the first day of such sittings ; and he shall at 
 the same time deliver to the ret,pondent two printed books. 
 
 XXI II. If in the opinion of the Court any parties not served ought to be 
 notified, the Court may direct service to be made, and may i)ostpone the hearing 
 of the appeal for that purpose upon such terms as may seem just. 
 
 XXIV. If either party neglect to appear at the proper day to support or resist 
 the appeal, t Court may hear the other party, and may give judgment without 
 the interveiit. ' 1 of the party so neglecting to appear, or may postpone the hearing 
 upon payment if such costs as the Court shall direct. 
 
 XXV. Intej-i. "utory applications to the Court or a Judge shall be made by 
 notice of motion supitorteil by affidavit to be filed in the office of the registrar 
 before the notice of motion is served. 
 
 XXVI. The notice of motion together with copies of the affidavits filed shall 
 be served at least two clear days before the time of hearing ; and in the computa- 
 tion of such two clear days, Sunday or any day on which the ofiices are closed is 
 not to be reckoned. 
 
 XXVIT. Admissions of the service of a notice of motion upon the opposite 
 Attorney or Solicitor need not be verified by affidavit ; and in no case shall an 
 affidavit of service be allowed upon taxation unless it shall appear that the party 
 served shall, after a demand therefor, have refused to give an admission of such 
 service. 
 
 XXVIII. The same fees and allowances shall be taxed in appeal by the 
 registrar, as are allowed for similar services in the Court from which the appeal 
 is lirought ; and a reasonable sum, not exceeding $5 in any case may be allowed 
 for correspondence during the progress of the appeal. 
 
 XXIX. In ordinary cases the registrar shall not tax larger counsel fees than 
 $40 to tlie senior counsel, and $JU to the junior counsel ; and in no case more than 
 $8ii to tfie senior and $'M to the junior counsel. 
 
 XXX. The registrar shall not tax two counsel fees, except in cases of such 
 difficulty or importance as to render the appearance of two counsel reasonably 
 necessary and proper. 
 
 XXXI. Two clear days' notice shall be given to the unsuccessful party or 
 parties of the time appointed by the registrar for the settlement of the certificate, 
 
"f 
 
 COURT OF APPEAL RULES. 
 
 83 
 
 provided for by the 44th Section of the Court of Appeal Act and the taxation of 
 costs. 
 
 XXXIL -XXXIX. related to Insolvency appeals. 
 
 COUNTY COURT APPEALS. 
 
 For the purpose of avoiding - innecessary expense in appeals from County Courts, 
 particularly in making copies of papers, it is ordered that : — 
 
 XXXIX a. The pleadings, motions, rules, orders and other papers certified to 
 the Court of Appeal, under section 41 of the Act respecting County Courts, shall 
 be the original papers tiled in the County Court : and when the evidence has been 
 taken by an official reporter, his transcript of the evidence used or prepared for 
 use in the County Court upon the motion which is the subject of appeal, shall be 
 the evidence so certified. 
 
 The said papers, together with the Judge's charge and his judgment or decision, 
 and also the evidence when not taken by an official reporter, and all objections and 
 exceptions to the evidence, shall be fastened together and transmitted with the 
 Judge's certificate to the registrar of the Court of Appeal, who is to return them 
 to the County Court when the appeal is disponed of. 
 
 It shall not be necessary to certify or transmit the evidence or the objections or 
 exceptions thereto in any case in which the appeal is from a judgment or decision 
 upon the pleadings or upon any motion not founded upon the evidence. 
 
 This order was promulgated ijth day of May, iS8o. 
 
 XL. An appeal shall be set down to be heard at the first sittings of the Court 
 for the hearing of arguments, which shall commence after the expiration of thirty 
 days from the decision complained of. 
 
 XLI. An appeal shall be set down for hearing hy delivering to the registrar of 
 the Court of Appeal at least eight days before the sitting at which the appeal is to 
 be hea-d the certified copy of the pleadings, proceedings, evidence and other 
 matters required by section 43 of the Revised Statutes of Ontario, and ten appeal 
 books for the use of the Judges of the Court of Ajjpeal and the Officers of the Court. 
 
 XLII. The books shall be printed on paper of good quality, on one side of the 
 paper only, in demy quarto form with small pica type leaded, and every tenth line 
 of each page shall be numbered in the margin, and the statement of the reasons of 
 appeal shall form a part thereof. 
 
 XLIII. A full copy of the pleadings shall not be printed in the books, unless it 
 be necessary for the proper consideration of the question raised upon appeal, ex. gr. 
 in questions arising on demurrer, or in arrest of judgment, or for judgment non 
 obstante veredicto. In other cases it shall be sutficient to state the substance of the 
 
 Eleailings, in a brief form, m accordance with the example given in the appendix, 
 ut so as to be intelligible. (Form C.) 
 
 XLIV. It shall not be r -cessary to print evidence which does not bear \ipon 
 the question in appeal, but i .e books must always contain the opinion delivered by 
 the Judge in Term, and his charge in case of a trial by jury, ana his note of judg- 
 ment in case of a trial by himself. 
 
 XLV. Exhibits used at the trial shall not be printed in the books, unless their 
 contents are material to the question in appeal, and then only such parts as are 
 material ; if any instrument or document be unnecessarily printed, the expense 
 thereof shall be disallowed on taxation. 
 
 XLVI. All formal matters, such as copies of the motion papers and rules dis- 
 charging or making rules nisi absolute, shall be omitted, but such reference shall be 
 made to them including the dates thereof, as may appear necessary for giving a 
 clear and intelligible statement of the case. 
 
 XLVII. No costs shall be taxed whether between party and party, or between 
 attorney and client for any matter appearing in the appeal books which waa not 
 reasonably necessary to raise the question in api^eal. 
 
 XLVIII. The appellant shall, at least six days before the sittings at which the 
 appeal is to be heard, serve the respondent with notice of the setting down of the 
 appeal and with a copy of the printed appeal book, and of the grounds and reasons 
 
 9 
 
n 
 
 V . 
 
 ^'J 
 
 ; I 
 
 n:i 
 
 84 
 
 JUDICATURE ACT. 
 
 of his appeal. In case the respondent is of opinion that any necessary matter has 
 been omitted, he may at any time before the hearing leave with the registrar a 
 memorandum briefly referring to such omitted matter. 
 
 XLIX. Service of all necessary notices may be made either upon the attorney 
 or upon his town agent, in the same manner as if the suit were in one of the Superior 
 Courts. 
 
 L. If the foregoing rules are not complied with, the appeal shall not be heard, 
 unless the Court or a Judge shall on application made upon two days' notice to the 
 respondent otherwise order. 
 
 LI. The costs to be taxed and allowed upon appeals from County Courts shall be 
 on the same scale as formerly allowed upon appeals to the Courts of Queen's Bench 
 or Common Pleas : And a sum not exceeding in any case $2.00, may be allowed 
 for correspondence during the progress of the appeal. 
 
 LII. All books, as well in Superior Court as County Court appeals, shall con- 
 tain the date of the first proceeding in the suit or matter ; and the dates of the fil- 
 ing of the several pleadings shall be stated at the commencement of the copy or 
 summary thereof. In the event of non-compliance with this rule such books will 
 not be received by the registrar, nor will the appeal be heard. 
 
 SITTINGS, VACATION, COMPUTATION OF TIME, &o. 
 
 LIII. There shall be five sittings in the year for hearing arguments, commen- 
 cing on the second Tuesday in January, the first Tuesday in March, the second 
 Tuesday in May, the first Tuesday in September, and the second Tuesday in Nov- 
 ember, or in case any of these days shall be a legal holiday, then on the following 
 day. 
 
 LIV. In case of sittings at any other time being deemed necessary or conveni- 
 ent for the despatch of business, due notice of the time of holding the same will be 
 given. 
 
 LV. There shall be two vacations, namely : the long vacation commencing on 
 the lot «»j v.r July, and terminating on the 31st day of August, and the Christmas 
 vacation commencing on the 24th day of December and terminating on the 2nd day 
 of January following. 
 
 LVI. The days of the Commencement and termination of each vacation shall 
 be included in and reckoned part of the vacation. 
 
 LVII. The time of either vacation shall not be reckoned in the computation of 
 the time appointed or allowed by these Orders for any act or proceeding, except in 
 the case of County Court appeals. 
 
 LVIII. The Court or a Judge shall have power to enlarge or abridge the time 
 appointed by these Orders for doing any act or taking any proceeding upon special 
 application, and upon such terms as the justice of the case may require. 
 
 LIX. In all cases in which any particular number of days, not stated to be 
 clear days, is prescribed by these Orders, the same shall be reckoned exclusively of 
 of the first day, and inclusively of the last day, unless such last day shall happen 
 to fall on Sunday, or a legal holiday, or non-juridical day. 
 
 LX. In all cases expressed to be clear days or where the term "at least" is 
 added, both days shall be excluded. 
 
 LXI. In all matters, relating to services of notices, not specially provided for 
 by these Orders, the practice of the Court appealed from shall be followed. 
 
 PAYMENT OF MONEY INTO AND OUT OF COURT. 
 
 LXII. Money ordered to be paid into Court is to be deposited in the Canadian 
 Bank of Commerce at Toronto, with the privity of the registrar and to the credit 
 of the cause or matter. 
 
 LXIII. Any person desiring to pay money into Court must file a written re- 
 quest with the registrar for a direction, which the registrar shall give, stating the 
 style of the cause or matter and the amount to be paid in. 
 
^■ 
 
 COURT OF APPEAL RULES. 
 
 m 
 
 LXIV, The person so pa:^ing in shall obtain a duplicate receipt therefor, one 
 copy of which shall be filea with the registrar. 
 
 LXV. No money is to be paid out of Court except upon an order of the Court 
 or a Judge obtained upon notice to the opposite party. 
 
 LXVI. Money is only to be paid out of Court upon the cheque of the regis- 
 trar, countersigned by a Judge. 
 
 APPENDIX. 
 
 Form A. 
 
 Enow all Men bt these Presents, that we (naming all the obligors with ^ 
 their places of residences and additions), are jointly and severally held and firmly 
 bound unto (naming the obligees with their places of residence and additions), in 
 the penal sum of dollars, for which payment, well and 
 
 trulv to be made, we bind ourselves, and each of us by himself, our, and each of 
 our heirs, executors and administrators, respectively, firmly by these presents. 
 
 Dated this day of 
 
 Whereas the (appellant) complains that, in the'giving of a certain judgment in a 
 certain suit in Her Majesty's Court of Queen's Bench, (or of Chancery or Common 
 Pleas, as the case may be, ) in the Province of Ontario, between (naming the parties 
 to the cause) , manifest error hath intervened ; wherefore (the 
 
 appellant desires to appeal from the said judgment to the Court of Appeal. 
 
 Now the condition of this obligation is such that if (the appellant) do and shall 
 effectualljr prosecute such appeal, and pay such costs and damages as shall be 
 awarded, in case the judgment aforesaid to oe appealed from shall be affiri ^ jd or 
 in part aflirmed, then this obligation shall be void, otherwise to remain in full 
 force. 
 
 Signed, sealed and delivered, 
 in the presence of 
 
 ]'• 
 
 Form B. 
 In the (style of Court). 
 
 E. F., of , make oath and say, that I 
 
 am a resident inhabitant of Ontario, and am a householder 
 (or a freeholder in ,) and that I am worth 
 
 in, 
 
 A. B., plaintiff, 
 
 vs. 
 C. D. Defendant. . 
 
 the sum of , (the sum mentioned as the penalty, or such sum as the 
 
 deponent is bound in,) over and above what will pay all my debts ; and I, J. H., 
 of , make oath and say, that I am a resident inhabitant of Ontario, and 
 
 am a householder in _ . (or a freeholder in , ) and that I 
 
 am worth the sum (as in the former case) of , over and above what will 
 
 pay all my debts. 
 
 The above-named deponents, E. F. and G. H. were sworn at, &c., the 
 day of 18 , before me. 
 
 Commissioner, &c. 
 
 Form C. 
 
 Action commenced by Writ dated 2nd January, 1878. 
 
 Declaration : Filed 16th January, 1878. 
 
 1st Count. — Trespass to goods. 
 2nd " — Common Counts. 
 
 Pleas : Filed 24th January, 1878. 
 
 To Ist Count. 
 
 1. Not guilty. 
 
 2. Not possessed. 
 
 3. Leave and license. 
 
 To 2nd Count : Nunquam indebitatus. 
 
 (Replication and other pleadings to be in similar form, but suflBcieucly full to 
 be intelligible.) 
 
 5 
 
86 
 
 JUDICATURE ACT. 
 
 40. Upon the request of the Judge or Judges with or for 
 whom he is requested to sit or act, it shall be lawful for any 
 Judge of the Court of Appeal, who may consent so to do, to 
 sit and act as a Judge of the said High Court, or to perform 
 any other official or ministerial acts for or on behalf of any 
 Judge absent from illness or any other cause, or in the place of 
 any Judge whose office has become vacant, or as an additional 
 Judge of any Division ; and while so sitting and acting any 
 such Judge of the Court of Appeal shall have all the power and 
 authority of a Judge of the said High Court. 
 
 See Imp. Act of 1873, s. 51 ; R S. 0., c. 38, 8. 9. 
 
 See as to a Judge of one Court, sitting as a member of, or for a Judge of another 
 Court or Division, Sec. 29, sub-sec. 4 ; K. S. 0., c. 38, s. 9 ; c. 39, s. 10 ; c. 40, ss. 
 22, 27. 
 
 41. In any cause or matter pending before the Court of 
 Appeal, any direction incidental thereto, not involving the 
 decision of the appeal, may be given by a single Judge of the 
 Court of Appeal ; and a single Judge of the Court of Appeal 
 may at any time during vacation make any interim order to 
 prevent prejudice to the claims of any parties pending an 
 appeal as he may think fit ; but every such order made by a 
 single Judge may be discharged or varied by the Court of 
 Appeal or a Divisional Court thereof. 
 
 See Imp. Act of 1873, s. 62. 
 
 Prior to this Act a single Judge had power to amend the certificate embodying 
 the judgment of the Court, St John v. Bykert, per Patterson, J., 1880. 
 
 43. In case from pressure of business, or other cause, it shall 
 at any time seem expedient to the Lieutenant-Governor in 
 Council, or to the Judges of the Supreme Court, or a majority 
 of them (of which majority two Judges of the Court of Appeal, 
 including the Chief Justice unless absent on leave, shall form 
 part), the Court of Appeal may sit in two Divisions at the same 
 time ; and in such case, and to enable two Divisional Courts to 
 be held, the Judges of the said Supreme Court, or the said 
 majority of them, shall select from the Judges of the High 
 Court so many of the Judges thereof as may be necessary, 
 together with the ordinary Judges of the Court of Appeal, to 
 form two Divisions of the said Court, and the Judges so chosen 
 and acting shall have all the power and authority of the Judges 
 of the said Court of Appeal. 
 
 (2) Unless otherwise arranged by the Judges of the Court 
 of Appeal and the said Judges so selected, two of 
 
■PI 
 
 TRIAL AND PROCEDURE. 
 
 m 
 
 the ordinary Judges of the Court of Appeal shall 
 where practicable sit in each such Divisional Court. 
 
 See Imp. Act of 1875, s. 12. 
 
 43. No appeal shall lie to the Supreme Court of Canada 
 without the special leave of such Court, or of the Court of 
 Appeal, unless the title to real estate or some interest therein 
 or the validity of a patent is affected ; or unless the matter in 
 controversy on the appeal exceeds the sum or value of $1,000, 
 exclusive of costs; or unless the matter in question relates to the 
 taking of an annual or other rent, customary or other duty or 
 fee, or a like demand of a general or public nature affecting 
 future rights. 
 
 See R. S. 0., c. 38, a. 49 : 38 Vic. (D) c. 11, s-s. 17 : 42 Vic. (D) c. 39, s. 8. 
 
 This section corresponds in its terms to R. S. 0., c. 38, s. 49, which limits the 
 right of appeal, to Her Majesty in Her Privy Council, to cases wh^re the matter 
 in controversy exceeds $iOOO. See also 38 Vic. c. 11, s. 17 [D], which limits the 
 right of appeal to the Supreme Court from judgments rendered in the Province of 
 Quebec : and the 42 Vic. c. 42, s. 8 [D]. 
 
 " Title to real estate" — See notes to Sec. 33. 
 
 ^* Exceeds tlu sum or value of $1^000." — See notes.to Sec. 33. 
 
 
 PART IV. 
 
 TRIAL AND PROCEDURE. 
 
 44. At the trial of any action no party shall be entitled to 
 judgment on the ground of his pleading being true, if the facts 
 proved are not sufficient in point of law to entitle him to 
 judgment. 
 
 See R. S. 0., c. 49, s. 5 ; R. Sup. C, Dec. 1876, R. 3; Imp. Act of 1876, s. 17. 
 "Jtidgment" includes decree, sec. 91. 
 
 45. Subject to Rules of Court, in causes and matters 
 which, at the time of the passing of this Act, are within the 
 jurisdiction of the Courts of Law, the mode of trial shall be 
 p'" ' . iiow provided by law for like cases in actions in the said 
 oourts of Queen's Bench and Common Pleas ; and, subject 
 as aforesaid; in causes and matters over which the Court of 
 Chancery has, at the time of the passing of this Act, exclusive 
 jurisdiction, the mode of trial shall be according to the present 
 practice of the Court of Chancery. 
 
 See R. S. 0., c. 49, gg. 4, 31 ; c. 50, as. 252, 258. 
 
 
88 
 
 JUDICATURE ACT. 
 
 " Within t/u jurisdiction of the Courts of Law.'''' ^ The jurisdiction of the Courts 
 of Law was much extended by The Administration of Justice Act, 36 Vic, c. 8, 
 now embodied in the R. S. 0. , c. 49, s. 4. It is as follows :— Any person having a 
 purely money demand may proceed for the recovery thereof by an action at law, 
 although the plaintiff's right to recover may be an equitable one only, and no plea, 
 demurrer or other objection on tlie ground that the plaintiff's proper remedy is in 
 the Court of Chancery, shall "^^ -•' --wed in such action ; but the Court shall have 
 the discretionary power herei . entioned to transfer Equity matters to the 
 
 Court of Chancery where t' t it "tice so require. 
 
 " As is now provided by lii , j.>\ o- no Jury. The R. S. O., c. 50, ss. 252—257, 
 contain the practice upon this point. They are as follows : — Sec. 252. In actions 
 of libel, slander, criminal convorsation, seduction, malicious arrest, malicious pro- 
 secution and false imprisonr.i' n.t, aj' questf" which might heretofore have been 
 tried by a jury, shall be triei' by -i iry, ^ .^cas the parties in person or by their 
 attorneys or counsel, waive such trial. Sec. 25.. . AU other issues of fact in any 
 civil action, when brought in either of the Superior Courts, or in any of the County 
 Courts, and the assessment or inquiry of damages in every such action, may, and 
 (subject to the provisions of the two hundred and fifty-fifth section) in the absence 
 of such notice as in sub-section two of this section mentioned, shall be heard, tried 
 and assessed by a Judge of the said Courts without the intervention of a jury. 
 Sub-s. 2. If any one or more of the parties desire such issue to be tried or damages 
 to be assessed or mquired of by a jury, he shall give notice to the Court in which 
 such action is ponding, and to the opposite party, by filing with his last pleading 
 and serving on the opposite party a notice in writing to the effect following, that is 
 to say :— 
 
 " The Plaintiff (or one or more of them or the Defendant, or one or more of them, 
 as the case may be) requires that the issues in this cause be tried [or the damages 
 assessed) by a jury," and a copy of such notice shall be attached to the record. 
 
 254. Wherever any one or more of the parties to any such action have given 
 such notice requiring a jury as hereinbefore provided, the cause shall be carried 
 down to trial in the same manner and with tne like effect as if section 253 had 
 not been passed, and (subject to the provisions of section 255) the issues of fact 
 therein shall be tried and determined or assessed by theunanimous verdict of twelve 
 jurors duly sworn for the trial of such issues or for the assessment of such damages. 
 
 Sub-s. 2. The parties present at the trial may consent that the said notice shall 
 be waived, and the case tried and damages assessed by the Judge, and may endorse a 
 memorandum of such consent upon the record, and thereupon the Jiidge shall pro- 
 ceed to the trial of the issues or assessment of the damages without the intervention 
 of a jury. 
 
 255. Notwithstanding anything in the two next preceding sections contained, 
 the Judge presiding at the trial may in his discretion direct that any such 
 action shall be tried or the damages assessed by a jury ; and upon application to 
 the Court in which the action is pending, or to a Judge thereof, by an order made 
 before the trial, or by the direction of the Judge presiding at the trial, the issues 
 may be tried and damages assessed without the intervention of a jury. 
 
 256. The verdict or finding of the Judge by whom any issue is tried or damages 
 assessed shall have the like effect as the verdict or finding of a jury, and the like 
 fees and charges shall be payable in respect of the same. 
 
 257. Where in any action equitable issues are raised by the pleadings or defence, 
 they shall be heard and tried, and the assessment or inquiry of damages, if any, 
 incidental thereto shall be assessed and inquired of by the Court, or a Judge, with- 
 out the intervention of a jury ; but it shall be competent for the Court, or Judge, 
 upon the application of either party, supported by sufficient reasons, to order such 
 issues to be tried or damages assessed by a jury. 
 
 And see O. XXXI., r. 4, by which every trial of any question or issue of fact by 
 a jury shall be held before a single Judge, unless such trial be specially ordered to 
 be held before two or more Judges. 
 
 Superior Courts and County Courts. — In certain cases Superior Court actions 
 may be tried at the County Courts, and in certain others County Court actions may 
 tried at the sittings of Assize and Nisi Prius. R. S. O. c. 49, ss. 31-44 contain 
 the law and are as follows : — 
 
 Sec. 31. All issues of fact and assessment of damages in the Superior Courts of 
 Common Law relating to debt, covenant and contract, where the amount is liqui- 
 
TRIAL AND PROCEDURE. 
 
 dated or ascertained by the signature of the defendant, may be tried and asseased 
 in the County Court J the county where the venue is laid, if the plaintiff desires 
 it, unless a Judge of such Superior Court otherwise orders, and upon such terms 
 as he deems meet. 
 
 Sub-s. 2. In such case the record shall be made up, and entered as in other cases, 
 excei% that an entry shall be made therein, and in the subsequent proceedings in the 
 words or to the effect of Form 1, in the schedule to this Act, in place of the ventre 
 facias; and the trial shall take place in the same way as in ordinary cases in such 
 County Court ; and in the roll the postea shall be entered in the words or to the ef- 
 fect of Form 2 in the said schedule. 
 
 Sub-B. 3. In any action depending in either of Her Majesty's Superior Courts of 
 Common Law, in which the amount of the demand is ascertained by the signature of 
 the defendant, and in any action for any debt in which a Judge of either of the 
 said superior Courts is satisfied that the case may safely be tried in a County Court, 
 any Judge of either of the said Superior Courts may order that such case shall 
 be tried in the County Court of the county where such action was commenced, 
 and such action shall be tried there accordingly, and the record shall be made up 
 as in other cases, and the order directing the case to be tried in the County Court 
 shall be annexed to the record, and the trial shall take place in the same way as in 
 ordinary cases in such County Court. 
 
 Sec. 32. By the order of a Judge of either of the Superior Courts of Law, 
 made upon such terms as the Judge ma^ consider just, the issues of fact and as- 
 sessment of damage in any action pendmg in a County Court may be tried and as- 
 sessed at the sittings of Assize and Nisi Prius for any county. 
 
 Sub-s. 2. In such cases the record shall be made up and entered and the case tried 
 as in ordinary cases, and the postea shall be entered in the roll in the words or to 
 the effect of ^f'orm 3, in the schedule to this Act. 
 
 Sec. 33. In any of the cases in the two next preceding sections mentioned, the 
 notice of trial or assessment of damages shall state that the cause will be tried, or 
 the damages assessed at such sittings according to the fact ; and in cases in the 
 Superior Courts, where the trial or assessment is intended to be had in the County 
 Court, under sub-section 1 of the thirty-first section, the notice of trial of assess- 
 ment shall be served ten clear days before the sittings of such County Court. 
 
 Sec. 34. Nothing herein contained shall prevent a Judge of the Court in which 
 the action is brought, or, after the record is entered for trial or assessment, the 
 Judge before whom the trial or assessment is intended to be had, from entertain- 
 ing applications to postpone such trial or assessment. 
 
 Sec. 35. Subject to the provisions herein and in sections two hundred and 
 eighty-five and two hundred and eighty-six of "The Common Law Procedure Act," 
 contained, judgment in any of the said cases may be entered on the fifth day after 
 verdict rendered or damages assessed, unless the Judge who tries the cause certifies 
 on the record under his hand that the case is one which in his opinion should 
 stand to abide the result of a motion that may be made therein in term, or unless 
 a Judge of one of the Superior Courts otherwise orders ; but in any such case, the 
 Judge may certify for immediate execution. 
 
 Sec. 36. Any motion to be made in respect to the trial, verdict or assessment 
 of damages in a Superior Court case tried or asseased at the sittings of any County 
 Court, shall be made in the Superior Court in which the action was brought. 
 
 Sec. 37. Any motion to be made in respect to the trial verdict or assessment of 
 damages in any County Court cause had, tried or assessed at any sittings of Assize 
 and Nisi Prius, shall be made, heard and determined in such one of the Superior 
 Courts of Law at Toronto as the party moving or applying elects, and according to 
 the practice of that Court ; and any rule or order made in such cause by such 
 Court shall be valid and binding. 
 
 Sub-s. 2. The decision of the Superior Court of Law at Toronto, or any motion 
 made under this section, shall be .final, and shall not be subject to appeal to the 
 Court of Appeal. 
 
 Sec. 38. In any action in the County Court entered for trial at any sittings of 
 Assize and Nisi Prius, the Judge presiding at the sittings shall have the same 
 powers as to amendment of the record, adding and amending pleadings, putting off 
 the trial, reference to arbitration, and making the cause a remanet, and otherwise 
 
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 ■|| 
 
 M 
 
If 
 
 4 
 
 i:Vl 
 
 
 90 
 
 JUDICATURE ACT. 
 
 dealing with the cause and proceedings therein, as if the action had been com- 
 menced in a Superior Court of Common Law. 
 
 Sec. 39. Whenever the said Judge endorses on the record in any such action 
 the word "/femanet," and adds any words to the effect following:— "And the 
 within cause may be entered and tn^d at any County Court or Assizes," such^ause 
 may be entered at any subsequent sittings of the County Court, or of Assize anB JVisi 
 Privs, without any further entry or suggestion whatever relative thereto, and may be 
 tried and disposed of in the sarue way as any other case entered at such sittings ; 
 and in such case an entry shall be made in the record to the effect of Form 4jn the 
 schedule to this Act, and the postea shall then be adapted to the finding of the 
 issues, as they may be tried and determined before a Judge or a jury in the County 
 Court, or at the Sittings of Assize and Nisi Prius. 
 
 Sec. 40. Wherever any such cause is referred by the persiding Judge at such 
 sittings, the County Court in which the action is brought and the Judge thereof, 
 shall have the same power to enforce any awurd, report or certificate made on the 
 reference, and to make rules and orders upon appeals therefrom and motions relat- 
 ing thereto, as if the order referring the case had been made by the County Judge, 
 
 Sec. 41. The Clerks of the several County Courts shall provide books in which 
 the Judges sitting in the Courts of Assize and Nisi Pfiits, where cases brought in 
 any County Court are tried or assessed under this Act. may enter their notes of 
 such trials and assessments ; and such books immediately after such trial or assess- 
 ments, shall be returned to and remain in the othces of such Clerks. 
 
 Sec. 42. On the application of any of the parties, the County Court Clerk shall 
 at the cost of such party, forward to the Clerk of the Crown and Pleas at Toronto, 
 of sucli of the Superior Courts as such party designates, a certified copy of the 
 Judges' notes of the trial or assessment of any such cases, together with the records 
 and exhibits, to enable such Superior Court properly to dispose of any application, 
 made or to be made, in or respecting such cases. 
 
 Sec. 43. The costs in all such proceedings in the said several Courts shall be the 
 usual costs of such cases in the Court in which the action was brought. 
 
 Seo. 44. The Jury fees and the fees and charges payable and pertaining to officers 
 of the County Court, upon all actions, suits or proceedings brought in the County 
 Courts, and tried or assessed in the Superior Courts, shall be chargeable and paid 
 as if the same were being tried or assessed in the County Courts ; and no other 
 fees shall be chargeable thereon, and the Clerk of the County Court shall be entitled 
 to receive and take such part thereof as pertains to him to his own use. 
 
 " Present practice of the Court of Chancery." In Chancery the trial is had before 
 a Judge without a jury, the evidence is taken and the cause is heard at the same 
 time unleHs the Judge otherwise orders. 
 
 As to entry for trial, notice of trial, proceedings at trial, etc., see O. XXXI. 
 
 Legal and equitable issues. — Where in an action or other proceeding at law both 
 legal and equitable issues are raised, such issues shall be tried at the same time 
 urdeas the Court, or a Judge thereof, or the Judge presiding at the trial, otherwise 
 directs, R. S. O., c. 50 s. 258. 
 
 " Exclusive jurisdiction." — The jurisdiction exercised by the Court of Chancery 
 was divided into the concurrent, the exclusive, and the auxiliary or supplemental 
 jurisdiction, Taylor's Eq. Jur. s. 53. It exercised concurrent jurisdicti(m with the 
 Courts of Law in most cases of fraud, accident, mistake, account, partition and 
 dower. It claimed exclusive jurisdiction in most matters of trust and confidence, 
 and wherever in the interests of justice the interference of a Court of Judicature 
 was necessary to prevent a wrong, and the positive law was silent, 1 Fonbl. Eq. 6. 
 1, c. 1, B. 3 note (/). The auxiliary jurisdiction was exercised to remove legal im- 
 pediments to the fair decision of questions depending in Courts of Law ; to com- 
 pel discovery in aid of actions at law ; and to perpetuate testimony when in 
 danger of being lost before the matter to which it related could be made the subject 
 of judicial investigation ; it was also exercised for the purpose of rendering the 
 judgments of Courts of Law effective, by providing for the safety if property in 
 dispute pending litigation ; by restraining tne party in whose hands it is from ex- 
 ercising any power over it, or parting with it until further order ; by counteracting 
 fraudulent judgments ; and by putting a bound to vexatious and oppressive litiga- 
 tion, 1 Fonbl. Eq. B. 1, c. 1, s. 3, note (3). 
 
 The classes of cases formerly ranged under the head of exclusive jurisdiotion 
 baa been much restricted by B. S. O., c. 49, s. 4. See note, ante. 
 
mm 
 
 P 
 
 TRIAL AND PROCEDURE. 
 
 91 
 
 46. As often in every year as the due despatch of business 
 and the public convenience may require, there shall be 
 sittino^s at every county town, for the trial of causes and 
 issues, whether legal or equitable, which are to be heard and 
 determined by a Judge without a jury, and in case such sittings 
 are appointed at any county town for the same time and 
 before the same Judge as juiy cases, separate lists shall be 
 made of the jury and non-jury cases, and the jury cases shall 
 firs': be disposed of, unless where the Judge shall see fit, for 
 some special reason, to direct otherwise. This section is sub- 
 ject to section 255 of the Common Law Procedure Act. 
 
 See R. S. O., c. 40, sa. 23-27; c. 41, ss. 1-12; c. 49, a. 3; c. 50, a. 249. 
 
 "Judge without a jury." — See no tea to sec. 45. 
 
 " Separate /w/j."— Under O. XXXI., a. 14, separate lists are alao to be made for 
 defended and undefended issues. By r. 10 of the aame Order, where the Judges 
 consider that public convenience so requires, provision may be made for the trial at 
 a separate time, or before another .Judge, of the actions from the Chancery Division. 
 
 See £55, C. L. P. ^.— See notes to sec. 45. 
 
 47. Subject to any Rules of Court and to such right as 
 may exist to have particular cases submitted to the verdict of 
 a jury, any question arising in any cause or matter (other than 
 a criminal proceeding by the Crown) before the High Court of 
 Justice or before the Court of Appeal, may be referred, by the 
 Court or oy any Divisional Court or Judge before whom 
 such cause or matter may be pending, for inquiry and report 
 to a Judge oi a County Court, or to an official referee, or to 
 any other person agreed on by the parties ; and the report of 
 such referee may be adopted wholly or partially by the Court, 
 and may (if so adopted) be enforced as a judgment by the 
 Court. 
 
 See Imp. Act of 1873, a. 56 ; R. S. O. c. 50, ss. 189, 195, 197. 
 
 There are now various methods in which issues raised in an action may be dia- 
 posed of. 
 
 1. The parties may agree upon some iasue or issues of fact which may by an 
 order be sent down to trial, R. S. 0. c. 50, s. 181, et seq. 
 
 2. The whole action may be compulsorily referred to arbitration, R. S. O. c. 50, 
 8. 189, et seq. 
 
 3. Or it may be referred by consent of parties, R. S. O. c. 50, s. 201, */ seq. 
 
 4. Questions arising in the action (but noc the action itself) may be referred to 
 an official referee or other person agreed upon for report, Ont. Jud!. Act, s. 47. 
 
 5. Questions or issues of fact (but not the action itself) may be sent before an 
 official referee or other person agreed upon, for trial, Ont. Jud. Act, a. 48. 
 
 6. Necesaary inquiries or accounta may be ordered to be made or taken at any 
 time notwithatanding that there is aome apecial or further relief sought for, O. 
 XXIX., r. 1, and see R. S. O. c. 49, as. 26-29. 
 
 7. The parties may concur in statingquestiona of law in the form of a special 
 case for the opinion of the Court, O. XXX. r. 1. 
 
 5 
 
rrr' 
 
 92 
 
 JUDICATURE ACT. 
 
 8. 
 2. 
 
 Or the Court or a Judge may direct a special case to be stated, 0. XXX,, 
 
 
 9. If the writ be specially endorsed, the plaintiff may, after appearance, apply 
 for leave to sign final judgment upon an affidavit verifying the cause of action and 
 stating a belief that there in no defence, O. X. , r. 1. 
 
 10. Any party at any stage may apply, upon admissions of fact in the pleadings 
 or in the examination of any other party, for such order as he may be entitled to ; 
 or where the only evidence consists of documents and such affidavits as are neces- 
 sary to verify them ; or where infants are concerned and evidence is necessary so 
 far only as they are concerned for the purpose of proving facts which are not dis- 
 puted. O. XXXVI., r. 8. 
 
 11. Any application before the Court may be turned into a motion for judgment, 
 0. XXXVI., r. 9. 
 
 12. At any time after service of the writ an ex parte application may be made 
 for leave forthwith to serve notice of motion for judgment. If leave be given the 
 Court may on return of the notice either grant or refuse the motion or give direc- 
 tions for the examination of either parties or witnesses or the making of further 
 inquiries, O. XXXVI., r. 10. 
 
 13. Cases formerly within the jurisdiction of the Courts of Law, if they escape 
 premature extinction under one of the foregoing provisions, are to be tried as for- 
 merly they would have been, Ont. Jud. Act, s. 45. 
 
 14. Cases formerly within the exclusive jurisdiction of the Court of Chancery 
 are to be tried according to the Chancery practice. — Ibid. 
 
 "Any question." — The reference under this section is not of the action, but of 
 some question arisirg in the action. The form of the order is, "That the following 
 question arising in this action, namely be referred for inquiry and report to 
 
 , under section 47 of the Judicature Act, and that the costs of this application 
 be ^ ," see Form No. 130. The effect of this and the following section appears 
 clearly in the judgments given in Longman v. East ; Fontifex v, Severn ; Meltin v. 
 Monico, L. R. 3 C. P. D. 142. As the matter is important some extracts from the 
 judgments (the section numbers altered so as to be applicable to Ontario practice) 
 are given. Brett, L. J., said :— " I think it convenient before I proceed to the con- 
 struction of the Judicature Acts, to consider the kinds of references that existed 
 previously to the passing of those Statutes, and afterwards to consider the effect of 
 the Judicature Acts on the then existing law. Before the Judicature Acts there 
 were several modes in which disputes were remitted to the decision of third persons, 
 and which might be called references. There was the Common Law reference to 
 an arbitrator constituted by the consent of parties, there was the compulsory 
 reference to an arbitrator under the provisions of the Common Law Procedure Act, 
 and in the Court of Chancery there was the reference into Chambers. It was not 
 intended by the Judicature Acts to interfere with these references, and they at 
 present exist with all their incidents. But it was thought that further powers 
 ought to be given to the Divisional courts, and I think that sec. 47 gives to the Chan- 
 cery Division a new tribunal ; that is to say, instead of referring certain questions 
 for a report into Chambers, that Court may, if they think fit, refer questions to an 
 official referee — an officer newly appointed with limited duties and also defined 
 powers. Sec. 47, therefore, gives to that Division a new tribunal, in addition to 
 their own Chambers, but it gives to the Common Law Divisions a new power as 
 well as a new tribunal ; it gives them power to do what the Court of Chancery had 
 done in a suit or cause. The Common Law Courts had no power previous to the 
 passing of sec. 47 to refer matters in a cause for report. This section, however 
 gives them power to remit questions in a cause for report in the same way as a 
 question was referred in the Court of Chancery into Chambers, and afterwards the 
 report was brought back from Chambers to the Court. Sec. 48 gives powers both to the 
 Cnancery Division and to the Common Law Divisions which neither of them pos- 
 sessed before. It gives power to either Division to send certain questions or issues 
 in causes to an official referee, or to a special referee, to be agreed on between the 
 parties, not for report but for trial. That section gives powers to the Courts under 
 two different sets of circumstances. In the one case it gives them power to retnit 
 more questions to the official referee than it does in the other. It deals with refer- 
 ences to the official referee by consent of the parties and by compulsion. In the 
 sentence ' which cannot, in the opinion of the Court or Judge, conveniently be made 
 before a jury, or conducted by the Court or Judge directly,' the former words apply 
 
 / 
 
REFERENCES. 0i 
 
 evidently to the Common Law Divisions, where cases are tried by jury, and the 
 latter to the Chancery Division. I think, therefore, th^t where the parties have 
 consented, the Court may send, not the whole cause, ;• lo any question or issue of 
 fact in the cause to an official referee to try. Where a., jrder is made without con- 
 sent, they can only send such questions an are brought within the terms of the sec- 
 tion, that is, any issue requiring a prolonged examination of documents, or requir- 
 ing the examination of accounts, or requiring any scientiiic or local investi- 
 gation. But then it is not every question that requires scientific or local 
 investigation, or an examination of documents or accounts which can be referred 
 to the official referee. The governing words of the section are, 'which can- 
 not, in the opinion of the Court or a Judge,'— it .nust be a judicial opinion— 
 'conveniently be made before a jury or conducted by the Court or a Judge 
 directly.' Ii any part of a cause is brought witnin these terms, then the Court or 
 a Judge may by compulsion, at any time before or at the trial, order those questions 
 or those issues, which are thus brought within the definition, to be tried by an 
 official referee. In the first case, where the reference is by consent of the 
 parties, I think that all issues of fact may be sent before an official referee, 
 out that questions of law cannot be sent to him even by consent of the parties, 
 they have no right to impose upon the official referee such a reference, but if the 
 parties agree, then it seems to me that all the issues of fact in a case may be sent 
 to the official referee to try. If by consent all the questions of fact in a cause are sent 
 to an official referee, and if there are no issues of law to be afterwards decided by 
 the Court, then I incline to think that the parties may relieve the official from re- 
 porting or finding expressly as to each question of fact, and that they may consent 
 to his reporting to the Court the general etfect of his finding of all the facts in the 
 form, that, having tried all the issues of fact, he found the result to be in favour of 
 the plaintiff or the defendant. But I think that the referee has no jurisdiction to 
 order judgment to be entered ; that must be the act of the Court. If the parties 
 consent that the referee shall try all the issues of fact, and further, consent that he 
 shall report generally, I think even in such a case there is an appeal from him under 
 s. 49, on which I will presently express my opinion. If the reference to the 
 official referee, under s. 48, is without consent, I tnink that he is only to try the 
 issues which may be sent to him ; not to report the evidence upon which he found 
 each issue, but to state the result of each issue, and then the Court will have to 
 give judgment as they think right upon the findings, it being possible that there 
 may be several other issues in the same cause to be tried in another manner. Then 
 the whole result must afterwards be brought before the Court, and the Court must 
 give a decree or a judgment accordingly, as is done in the Chancery Division. There 
 18, 1 think, an appeal from the findings of the official referee on such issues." 
 
 Bramwell, L. J., said : — " Under sec. 47, any question arising in the cause 
 may be referred by the Court or Judge for inquiry and report to an official or special 
 referee. He is not to disi)ose of the action, and I do not think he is even to deter- 
 mine any matter in issue between the parties: if there are facts disputed — for 
 instance, if one of the parties asserts that a building is twenty feet high, and the 
 other that it is twenty-five feet— the referee, in such a case as that, must determine 
 the fact and report it ; his duty is, instead of determining issues of fact or of law, 
 to find the materials upon which the Court is to net. Clearly, under sec. 47, an 
 action cannot be referred to him to decide facts and law. In like way, under sec. 
 48, all that can be done is, in a case where there is no consent, the Judge can refer 
 issues of such a character as are mentioned, that is to say, when they require any 
 prolonged examination of documents or accounts, scientific or local investigation, 
 which could not conveniently be made before a jury, then the Judge may, without 
 consent, order any issue of fact involving any such matters to be tried by an official 
 referee. _ Where there is a consent, his power is stUl confined, that is, he has no 
 jurisdiction to order the action to be determined, but he may order any question or 
 issue of fact to be tried ; therefore, the order would not be limited to such cases as 
 before described, but would include any question or issue of fact, or any question of 
 account arising therein. But there is no power to refer the action, only questions 
 or issues of fact ; and where there irno consent, it is only issues of fact of tne parti- 
 cular character enumerated that can be referred, unless possibly some other issue of 
 fact was so mixed up with them that it could not practically be dissevered. Although 
 the words are, ' on such terms as may be thought proper,' that does not authorize 
 the Judge to refer a different matter, or to refer that which he otherwise could not 
 have referred, but it means he may do it on such terms as may be thought 
 proper with a view to the decision of what he may refer, and with a view to who 
 shall bear the costs afterwards." 
 
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 94 
 
 JUDICATURE ACT. 
 
 Ah invalid order may be good as a reference to arbitration. — In Mellin v, Monioo 
 (one of the above oaseit), an order had been made at the instance of the {plaintiff 
 that the action should be referred for trial to one of the official referees. This order 
 was held to be in excess of the jurisdiction of the Court under the sections in ques- 
 tion, but was nevertheless, under the circumstances of the case, upheld, Brett, L.J., 
 saying :— " With regard to Mellin v. Monico, I think that the order in that case as 
 drawn up is inconsistent with the powers to refer contained in the Act of 187-i, and 
 is therefore a bad order ; but the plaintifiF having consented to the order in that 
 form, and acted upon it up to the end, and taken his chance of a decision in his 
 favour, we must hold that he accepted it, not as a reference under the Judicature 
 Act, but as a reference to the official referee which he consented to take, not as 
 official referee, but as an arbitrator at common law. If that were not so, then I 
 should say there would be an appeal ; but then that would have been such an appeal 
 aa I have described, that is to say, Mr. Castle might, if he had had materials, have 
 moved as for a misdirection, or a decision against evidence." 
 
 If one issue proper for reference, all the issues can be referred, — In Longman v. 
 East, L. R. 3 C. P. D. 142, Brett, L. J., said:— "It was contended that sec. 48 
 was to be construed as s. 3 of the Common Law Procedure Act, 1854, had been 
 construed, that is to say, where a part of a cause was considered by the Judge a 
 matter of account which coiildnot oe conveniently tried in Court, the Judge under 
 the Common Law Procodure Act, 1854, referred the whole cause. But in my opin- 
 ion that is not the construction of s. 18. I do not think because one issue in the 
 cause is brought within the terms of section 48, the Court, or Judge, have power to 
 order all the issues in the cause to be sent to the official referee unless those other 
 issues are so mixed up with that is^ue that, although they are different issues in 
 form, yet in substance there is really only one issue." Cotton, L. J., said : — " My 
 own opinion is that the issues, which without consent may be sent to a referee, cannot 
 bo restricted to those issues which involve local or scientific examination or mat- 
 ters of account. There may be certain issues so connected with the matters of ac- 
 count, or with the matters requiring local inquiry or scientific examination, that it 
 would be hardly possible fairly to deal with the issues, not of that special character, 
 without sending them to the same person who is to deal with those requiring scien- 
 tific examination or local investigation, or matters of account. But, in my opinion, 
 it would be wrong even if there is any jurisdiction, which I do not say there is, 
 to transfer all the issues in a cause to a referee simply because there is a matter of 
 account which can only be properly dealt with by him." See also Ward v, Pilley, 
 L. R. 5 Q. B. D. 427 ; 49 L. J. N. S. (C. L.) 705, in which it is broodly laid down 
 that in any case in which the Court has jurisdiction to refer compulsorily a question 
 of account to an official referee it has also jurisdiction so to refer all the other issues 
 in the action. 
 
 Questions of fraud. — A Judge has jurisdiction to refer compulsorily issues which 
 fnvolve questions of fraud, affecting the character and reputation of the parties, 
 though, as a general rule, such issues ought not to be referred, Hooch v. Boor, 49 
 L. J. N. S. (C. L.)665. 
 
 An executrix brought an action to set aside for fraud the sale by the defendant 
 to her testator of about 130 pictures for prices amounting in the whole to £50,000. 
 The defence denied the fraud. The plaintiff moved to have the question referred to 
 a special referee, under the Judicature Act, sec. 47, on the ground that the ex- 
 amination of the pictures required a scientiiic investigation, which could not con- 
 veniently be had oefore a jury. The defendant opposed, and stated his wish for a 
 trial by a jury :— Held (affirming the decision of Hall, V. C.) that the case was not 
 within the purview of sec. 47 so as to give jurisdiction without the consent of ail 
 parties to send it to a referee, and that if there had been jurisdiction still, as the 
 case involved questions of fraud seriously affecting the character and fortune of 
 the defendant, it ought not against his will to be tried otherwise than in open Court. 
 James, L. J., said : — " Even if there were jurisdiction to make the order asked, 
 which I think there is not, ths case is one in which the defendant ought not to be 
 compelled to go before a referee. If a man says, ' My character is at stake, and I 
 insist upon having the case tried in open Court,' I should be shocked to find that 
 any course of proceeding in this Court interfered with his right to have it so tried." 
 Leigh V. Brooks, L. R. 5 Ch. D. 592. 
 
 y Questions of Account." These words will receive a large construction. A 
 claim made in an administration suit by a dealer in works of art against the estate 
 of the testator for £19,000, the aggregate prices of twenty-four items, consisting of 
 pictures and articles of vertu supplied to the testator in his lifetime, and specified 
 
REFERENCES. 
 
 M 
 
 in an account delivered to hi» executor, wm, on the 'vppiicution of the executor 
 ordered to be tried before the official referee. In re Leigh, dec<' ised ; Rowclitf e v. 
 Leigh, L. R. 3 Ch. D. 292. 
 
 Lush, J., at Chainbern, refused to order a compulsory reference to a special 
 referee of an action brought by trustees against their solicitors for negliKonco in 
 making a favourable report on a property which produced no rent, the report hav- 
 ing misled them into investing the trust moneys on a mortgage of the property. 1 
 Charley's cases (Chambers) 26. 
 
 A compulsory reference may be ordered by a Judge at Chambers, under this 
 section, where the furniture of a house has to be examined, that being a " local in- 
 vestigation." t Charley's cases (Chambers) 29. 
 
 An order was made by Mr. Justice Quain at Chambers, for a compulmiry refer- 
 nce of the plaintiff's claim in an action by a builder for work and materials and 
 e defendant's counterclaim for damages for non-completion to a special referee 
 be agreed upon by the parties, lb. 
 
 An order was made by Mr. Justice Quain at Chambers, for a compulsory refer- 
 ence of an action to recover £500 for the erection of a sliating rink to a special 
 referee to be agreed upon by the parties, and, in event of their failing to agree, to 
 a Master. In this case the applicant, the defendant in the action, put in an .affi- 
 davit that the surveyor refused to give his certificate, and that "a local if not a 
 scientific inve9tiga|;ion yiras necessary," lb., 28. 
 
 Appeal from <M < d« rs itnder Sees. 47 and A%. In Longman v. East. L. R. 3 C. P 
 D. 142, Brett, L. J , said :— " The nextouestion is, what is the nature of the appeal 
 which w given ? That will be found at the end of s. 49 ; the words are, ' and the 
 report of any referee on any question of fact on any such trial shall (unle.ss set 
 aside by the Court) be equivalent to the verdict of a jury. ' I should say that, in 
 the case of a report to the Court or Judge under s. 47, the Court or Judge may 
 differ from the official referee as to any finding which is an inference from the facts 
 that the referee has reported ; they may deal with his report generally in the same 
 way as the Courts do with a report of the Master upon a matter of disciplinD. But 
 with regard to the finding of a referee of issues of fact sent to him under s. 48, 
 either by consent of the parties or without consent, I think the appeal is of the 
 same nature as the appeal from the finding of a Judge when he tries with- 
 out a jury, or as the appeal from the finding of a jury ; that is to say, the Court 
 must accept the finding of the referee, unlens they can set it aside, according to the 
 ordinary rulei which would be applicable to the finding of a jury, or to the finding 
 of a Judge trying a cause without a jury. It is open to appeal, therefore, whether 
 improper evidence has been received by the official referee, or whether the official 
 referee, in considering the facts, has, so to speak, misdirected himself. The Court 
 can set aside the finding of the official referee, if they consider that the finding is a 
 finding against the evidence, in the same way that the Court set aside the finding 
 of a jury when their finding is against the evidence. In that case if the issue were 
 a material one, the Court would have to send back that issue to the referee, or to 
 some other referee to be tried." 
 
 Forms. —The form of order under sec. 47 is given above (and see Form No. l:iO). 
 The order under sec. 48 is not for a reference to inquire and report, but that the 
 "the following question (or issue) of fact (or account) viz., arising in 
 
 this action be tried before pursuant to sec. 48 of theOnt. Jud. Act." 
 
 For further usual terms of the order, see Chilty'a Forms (II ed.) 7s7 ; but see also 
 0. XXIX., rr. 2, 4. 
 
 Procedure. — If an order referring certain issues to an official referee be made at 
 the trial the proper course is to direct the reference, and order the trial to stand 
 over and not to give judgment, direct the reference under the judgment, and reserve 
 further consideration, Sykes v. Brook, 15 L. J. (notes of cases) 138. 
 
 After the trial the referee makes a report, in which he should give his finding 
 upon each issue, and, where the case is one in which the Court will require infor- 
 mation, should report upon the facts and any principle of calculation. Mayor of 
 Birmingham v. Allen, W. N. (1877) 190 ; but mere evidence should not be set out, 
 Longman v. East, L. R. 3 C.P. D., at p. 155 ; Quare, whether a referee should give 
 his reasons for his findings, Dunkirk Colliery Co. v. Lever, L. R. 9 Ch. D. 20. 
 
 Motions respecting /deport.— Under sec. 47 the report has to be "adopted wholly 
 or partialhr by the Court," and if adopted may be enforced as a judgment. The 
 report under sec. 48 is (unless set aside by the Court) " equivalent to the verdict 
 
M« 
 
 96 
 
 JUDICATURE ACT. 
 
 of a jury," see sec. 49. In proceeding under sec. 47 the motion is an order adopt- 
 ing the repoi-t, but see post. Upon this motion the parties are entitled to the 
 opinion of the Court upon the report, and any objections to it should be notified to 
 the opposite party, Wood v. Bamicot, W. N. (1878) 25. The Court may differ 
 from the referee as to any finding which is an inference from the facts that he has 
 reported, Longman v. East, L. R. 3 C. P. D. , at p. 155. But the Court cannot alter 
 or vary the report. The Court may adopt it wholly or partially or entirely dis- 
 regard it, and may in such latter case either refer the issues back again for further 
 report, or put the action in some other course of trial. The Court has no power to 
 form its own conclusion from the evidence adduced before the referee, Dunkirk 
 Colliery Co. v. Lever, L. R. 9 Ch. D. 20. It is said in Hayne's Chy. Prac. p. 530, 
 "that it will not always be necessary to give this notice of motion, if the reference 
 has been directed at the trial of the action, and further consideration was reserved, 
 the proper course will be to set down the action for hearing on further consideration. 
 Where a motion is necessary it would seem to be a motion for judgment. " The pro- 
 cedure under sec. 48 is different. In that case the motion by way of "ptjeal " is of 
 the same natr 'e as the appeal from a Judge when he tries without .m jury, or as the 
 appeal from the finding of a jury ; that is to say the Court must accept the finding 
 of the referee unless it can set it aside recording to the ordinary rules which 
 would be applicable to the finding of a jury, or to the finding of a Judge trying a 
 cause without a jury," per Brett, L. J., in Longman v. East, L. R. 3 C. P. D. at 
 p. 155. 
 
 J^u^ffment a/ter trial o/ issues under Sec. 48. — The order of reference may direct 
 the entry of judgment after the issues have been tried. In such case the form of 
 judgment given in the forms subjoined to the Rules No. 159 is the proper one for 
 use. In case there has been no such direction, then O. XXXVI. , rr. 4-5 prescribe 
 the subsequent procedure. These Rules are as follows : — 
 
 R. 4. Where issues have been ordered to be tried, or issues or questions of fact 
 to be determined in any manner, and there is no direction of a Court or Judge for 
 the entry of judgment, the plaintiff may set down the action on motion for judg- 
 ment as soon as such issues or questions have been determined. If he does not so 
 Bet ;t down, and give notice thereof to the other parties within 10 days after his 
 right BO to do has arisen, then after the expiration of such 10 days any defendant 
 may set down the action on motion for judgment, and give notice thereof to the 
 other pa: liies. 
 
 R. 5. Where issues have been ordered to be tried, cr issues or questions of fact 
 to be determined, in any manner, and some only of sudh issues or questions of fact 
 have been tried or determined, any party who considers that the result of such 
 trial or determination renders the trial or determination of the others of them un- 
 necessary, or renders it desirable that the trial or determination thereof should be 
 postponed, may apply to the Court or a Judge for leave to set down the action on 
 motion for judgment, without waiting for such trial or determination. And the 
 Court or Judge may, if satisfied of the expediency thereof, give such leave, upon 
 such terms, if any, as shall appear just, and may give any directions which may 
 appear desirable as to postponing the trial of the other questions of fact. 
 
 Upon the motion an order is obtained and thereupon judgment is entered in the 
 Form No. 167. 
 
 Disccvery after Order of Reference. — In actions which have been referred under 
 the 47th section of the Judicature Act, orders for the production of documents may 
 be made by the Judge who has directed the reference, in re Leigh ; Rowcliflfe v. 
 Leigh, L. R. 4 Ch. D. 661. Quare, Whether such an order can also be made by 
 the referee, lb. 
 
 "Court, Divisional Court or Judge."— In the form of the order to be made under 
 this section (No. 130) the "name of the Judge or Master in Chambers " making the 
 order is directed to be filled in ; see, however, notes to O. IV. r. 1 (a). 
 
 "Q^«a/r^^«*."— The oflScial referees are the Judges of the County Courts, 
 the Master in Chancery, the Clerks of the Crown and Pleas, the Referee in Cham- 
 bers, the Accountant, the Inspector of Titles, the Referee of Titles, and the Local 
 Masters of the Court of Chancery ; see sees. 62 and 63 and notes. 
 
 Arbitration. — As to compulsory and voluntary references of the matters m 
 dispute to arbitration and procedure thereon, see R. S. 0. c. 50, ss. 189-227 ; 0. 
 
 /L X I X - 
 
 For fonn of order of reference, see Forms, No. 127. 
 
wm 
 
 REFERENCES — ASSESSORS. 
 
 97 
 
 The old law and practice with reference to arbitration are not abolished by the 
 Judicature Act, and consequently, when a cause is referred to an arbitrator for 
 decision according to the old practice, the arbitrator cannot be called on to report 
 to the Court with regard to the matter referred to him, but his decision is final, 
 Cruickshank v. The Floating Swimming Baths Co., L. R. 1 C. P. D. 260. 
 
 Setting aside award. — An action having been referred to arbitration, the award 
 was published on the 14th of July. On the 24th of November (being the last day 
 but one of the old Michaelmas Term) the defendants moved the Court to set aside 
 the award, but the Court refused the application on the ground that notice of 
 motion had not been given to the plaintiff. The defendants, afterwards, on the 
 same day, served on the plaintiff a notice that on the 27th of November they would 
 move the Court to ti'it aside the award :— Held, on the authority of In re Corpora- 
 tion of Huddersfield and Jacomb, L. R. 17 Eq. 476 ; 10 Ch. 92, that the service of 
 notice of motion on the 24th of November was a complaint made in the Court before 
 the last day of the next term after the publication of the award within 9 and 10 
 Wm. III. c. 15, s. 2. although no affidavit was filed before the last day, as had been 
 done in thut case : Smith v. Parkside Mining Company, L. R. 6, Ex. D. 
 
 (2) The High Court, or any Divisional Court or Judge 
 as aforesaid, or the Court of Appeal, may also, in any 
 such cause or matter as aforesaid in which it may 
 think it expedient so to do, call in the aid of one or 
 more assessors specially qualified, and try and hear 
 such cause or matter wholly cr partially with the as- 
 sistance of such assessors. The remuneration, if any, 
 to be paid to such referees or assessors shall be de- 
 termined by the Court. 
 
 See Imp. Act of 1873, s. 56, second part. 
 
 As to the effect of the corresponding O. O. Chy. No. 541, in extending the juris- 
 diction of the Court of Equity, see Mcintosh v. G. W. R. Co., 3 Sm. & G. 146 ; 
 Mildmay v. Methuen, 1 Drew. 216, 16 Jur. 965. As to the ennployment of account- 
 ants. Re London, Birmingham and Bucks Ry. Co., 6 W. R. 141 ; and, they need 
 not always be employed in the presence of the parties, lb. 
 
 48. In any cause or matter (other than a criminal proceeding 
 by the Crown) before the said High Court, (1) in which all parties 
 interested who are under no disability consent thereto, and also 
 (2) without such consent in any such cause or matter requiring 
 any prolonged examination of documents or aocoimts, or any 
 scientific or local investigation which cannot, in the opinion of 
 the Court or a Judge conveniently be made before a jury, or 
 conducted by the Court or Judge directly, — the Court or a 
 Judge may at any time, on such terms as may be 
 thought proper, order any question or issue of fact, or any ques- 
 tion of account arising in the cause or matter, to be tried either 
 before a Judge of a County Court, or before an official referee, 
 or (if the parties so agree) before a special referee. 
 
 See Imp. Act of 1873, s. 57, first part. See notes to preceding section. 
 
 For form of order of reference under this section, see Forms, No. 131. 
 
 For form of judgment after reference under this section, see Forms, No. 159. 
 
 7 
 
98 
 
 JUDICATURE ACT. 
 
 (2) All such trials before referees shall be conducted in such 
 manner as may be prescribed by Rules of Court, and 
 subject thereto in such manner as the Court or Judge 
 ordering the same shall direct. 
 
 See Imp. Act of 1873, s. 67, second part. 
 
 As to mode of conducting trial, see 0. XXXI, rr. 23-28. 
 
 i:feree8 
 
 i 
 
 i*._ 
 
 ';«ili 
 
 49. In all cases of a reference to or trial by 
 under this Act, the referees shall be deemed to be officers of the 
 Court, and shall have such authority for the purpose of the 
 reference or trial as shall be prescribed by Rules of Court, or 
 (subject to such Rules) by the Court or Judge ordering such re- 
 ference or trial; and the report of any referee upon any question 
 of fact on any such trial shall (unless set aside by the Court) 
 be equivalent to the verdict of a jury. 
 
 See Imp. Act of 1873. s. 58. 
 
 '^Officers of the Court,'' as to their powers, see 0. XXXI., rr. 23-28. 
 
 '* Court or Judge," see notes to O. IV., r. 1 (a). 
 
 *^ Equivalent to the verdict of a Jury," see notes to Sec. 47. 
 
 " Unless set aside by the Court," upon a motion to set aside or vary the judgment 
 in a case tried before an official referee under this section, an affidavit or some evi- 
 dence of what took place at the trial must be furnished to the Court, Stubbs v. 
 Boyle, L. R. 2 Q. B. D. 124. 
 
 50. V\rith respect to all such proceedings before referees and 
 to their reports, the Court or Judge shall have, in addition 
 to any other powers, the same or the like powers as by the 
 Common Law Procedure Act and other Acts are given to 
 any Court whose jurisdiction is hereby vested in the said 
 High Court with respect to references to arbitration and pro- 
 ceedings before arbitrators and their awards and appeals 
 therefrom respectively. 
 
 See Imp. Act of 1873, s. 59. 
 
 "References to Arbitration."— ^ee R. S. O., c. 50, ss. 189-227, and all the 
 Ontario authorities, collected in Robinson & Joseph's Digest. 
 
 51. In the office of every Deputy Registrar and Deputy 
 Clerk of the Crown such seal shall be used as the Lieutenant- 
 Governor shall from time to time direct, which seal shall be 
 impressed on every writ and other document issued out of or 
 filed in such office ; and all such writs and documents, and all 
 exemplifications and copies thereof, purporting to be sealed 
 with the seal of any such Deputy Registrar or Deputy Clerk of 
 the Crown, shall in all parts of this Province be received in 
 evidence without further proof thereof. 
 
 See Imp. Act of 1873, 8. 61 : R. S. 0., c. 40, s. 3 ; c. 47, 8. 6. 
 
* ••. 
 
 T^ 
 
 RULES OF COURT. 
 
 99 
 
 62. Save as by this Act or by any Rules of -Court may be 
 otherwise provided, all forms and methods (as nearly as may be) 
 of procedure which at the commencement of this Act were in 
 force in any of the Courts whose jurisdiction is by this Actvested 
 in the said High Court under or by virtue of any law, general 
 order, or rule whatsoever, and which are not inconsistent with 
 this Act or with any Rules of Court — may continue to be used 
 and practised,in the said High Court of Justice, in such and the 
 like cases, and for such and the like purposes, as those to which 
 they would have been applicable in the respective Courts of 
 which the jurisdiction is so vested, if this Act had not passed. 
 
 See Imp. Act of 1873, 8. 73, as amended by Imp. Act of 1875, a. 21. 
 See notes to section 12 ante. 
 
 Rules of Court. 
 
 53. The Rules of Court in the Schedule to this Act 
 shall come into operation at the commencement of this Act 
 and as to all matters to which they extend shall thenceforth 
 regulate the proceedings in the High Court of Justice. But 
 such Rules of Court and also all such other Rules of Court 
 (if any) as may be made after the passing and before the 
 commencement of this Act, under the authority of the next 
 section, may be annulled or altered by the authority by 
 which new Rules of Court may be made after the commence- 
 ment of this Act. 
 
 See Imp. Act of 1875, s. 16. 
 
 " Commencement of this Act." Seo sec. 2 and notes. 
 
 54. At any time after the passing and before the commence- 
 ment of this Act, the Chief Justice of Ontario, the Justices 
 of Appeal, the Chief Justice of the Queen's Bench, the Chan- 
 cellor, and the Chief Justice of the Common Pleas, or any five 
 of them, and the other Judges of the several Courts intended 
 to be urited and consolidated by this Act, or a majority of 
 such other Judges, may make any further or additional Rules 
 of Court for carrying this Act into effect, and in particular for 
 all or any of the following matters, so far as they are not pro- 
 vided for by the Rules in the Schedule to this Act; that 
 is to say : — 
 
 (a) For regulating the sittings of the High Court of 
 Justice and the Court of Appeal, and of any 
 Divisional or other Courts thereof respectively, 
 and of the Judges of the said High Court sitting 
 in Chambers ; 
 
100 
 
 JUDICATURE ACT. 
 
 (6) For regulating the pleading, practice, and pro- 
 cedure in the High Court of Justice and Court of 
 Appeal; 
 
 (c) For the hearing of appeals from County Courts, or 
 a Judge of a County Court, from Surrogate 
 Courts, Stipendiaiy Magistrates, or Division 
 Courts, by any two or more of the Judges of 
 the Supreme Court, instead of the same being 
 heard by the Court of Appeal, or a Judge thereof, 
 (as the case may be) ; and for regulating the se- 
 lection of the Judges of the Supreme Court, who 
 shall hear such appeals, and for regulating all 
 matters relating to the practice on such appeals ; 
 
 See R. S. 0., c. 38, b. 19 ; 41 Vic. c. 8, s. 3; 42 Vic, c. 19, bs. 16, 17 ; 43 Vic, 
 c. 8, 8. 21. 
 
 (c?) Generally, for regulating any matters relating to 
 the practice and procedure of the said Courts res- 
 pectively, or to the duties of the officers thereof, 
 or of the said Supreme Court, or to the costs 
 of proceedings therein ; and every other matter 
 deemed expedient for the better attaining the 
 ends of justice, advancing the remedies of suitors, 
 and carrying into effect the provisions of this 
 Act and of all other Acts now or hereafter in 
 force respecting the said Courts. 
 
 See Imp. Act of 1875, s. 17 ; B. S. 0., c 49, s. 45, sub-s. 7. 
 
 (2) The said Judges shall have power, subject to the appro- 
 
 val of the Lieutenant-Governor in Council, to make 
 rules from time to time regulating all fees payable in 
 stamps. 
 
 (3) From and after the commencement of this Act, the said 
 
 Supreme Court may at any time, with the concur- 
 rence of a majority of the Judges thereof present at 
 any meeting for that purpose held, alter and annul 
 any Rules of Court for the time being in force, and 
 have and exercise the same power of making Rules of 
 Court as is by this section vested in the existing 
 Judges before the commencement of this Act. 
 
 (4) All Rules of Court made in pursuance of this 
 
 section, if made before the commencement of this 
 
RULES OF COURT. 
 
 101 
 
 Act, shall from and after the commencement of this 
 Act, and if made after the commencement of this 
 Act shall from and after they come into operation, 
 regulate all matters to which they extend, until 
 am. ailed or altered in pursuance of this section. 
 
 See'Imp. Act of 1875, s. 17. 
 
 (5) Subject to any Rules of Court which may be made 
 
 under the preceding provisions of this section the 
 Judges of the Court of Appeal shall continue after 
 the commencement of this Act to have all the 
 powers which they now possess as to making Rules 
 of Court for the regulation of the practice in appeals ; 
 and the Judges of the High Court shall as regards 
 matters in the said High Court have in like manner 
 all the powers which the Judges of the Court of 
 CI: ancery and of the Superior Courts of Law have 
 respectively for the regulation of the practice of the 
 said Courts. 
 
 See R. S. 0., c. 38, s. 56 ; c. 49, s. 45.^ 
 
 (6) Where any provisions in respect of the practice or 
 
 procedure of any Courts, the jurisdiction of which is 
 vested by this Act in the High Court of Justice, are 
 contained in any Statute, Rules of Court may be made 
 for modifying such provisions to any extent that may 
 be deemed necessary for adapting the same to the 
 High Court of Justice, unless, in the case of any Act 
 hereafter passed, this power shall be expressly exclu- 
 ded with respect to such Act or any provision thereof. 
 
 See Imp. Act of 1875, s. 24. 
 
 (7) Any provisions relating to the payment, transfer, or 
 
 deposit into, or in, or out of any Court of any money 
 or property, or to the dealing therewith, shall, for 
 the purposes of this section, be deemed to be 
 provisions relating to practice and procedure. 
 
 See Imp. Act of 1875, a. 24. 
 
 56. The Lieutenant-Governor in Council may from time to 
 time authorize the following persons, viz. : the Chief Justice of 
 Ontario, the Chief Justice of the Queen's Bench, the Chancellor, 
 and the Chief Justice of the Common Pleas, to make Rules of 
 Court under this Act ; every such appointment to continue for 
 
 
 
 
 
 
 CD 
 
 § 
 
 
 SB 
 
 
 •^ 
 
102 
 
 JUDICATURE ACT. 
 
 !t 
 
 m 
 
 'f J 
 
 
 4 [i 
 
 
 such time as shall be specified by Order in Council, and the 
 Judges so appointed, or any three of them, may make such 
 Rules, and the same shall have the same effect as if made by 
 all the Judges ox the Supreme Court, under the preceding 
 section. 
 
 See Imp. Act of 1876, s. 17, latter part. 
 
 56. A Council of the Judges of the said Supreme Court of 
 which due notice shall be given to all the said Judges, shall as- 
 semble once at least in every year, on .such day or days as shall 
 be fixed by the Lieutenant-Governor ,f or the purpose of consider- 
 ing the operation of this Act and of the Rules of Court for the 
 time being in force, and also the working of the several offices 
 and the arrangements relative to the duties of the officers of the 
 said Courts respectively, and of inquiring and examining into 
 any defects which may appear to exist in the system oi pro- 
 cedure or the administration of the law in the said High Court 
 of Justice or the said Court of Appeal, or any other Court or 
 by any other authority ; and they shall report annually to the 
 Lieutenant-Go verr or what (if any) amendments or alterations 
 it would in their judgment be expedient to make in this 
 Act, or otherwise relating to the administration of justice, 
 and what other provision (if any) which cannot be carried 
 into effect without legislative authority it would be expedient 
 to make for the better administration of justice. An Extraor- 
 dinary Council of the said Judges may also at any time be con- 
 vened by the Lieutenant-Governor. 
 
 See Imp. Act of 1873, s. 75. 
 
 57. All statutes relating to the several Courts consolidated 
 by this Act, and the Judges thereof, or wherein any of such 
 Courts or Judges are mentioned or referred to, shall be construed 
 and take effect, so far as relates to anything done or to be done 
 after the commencement of this Act, as if the said High Court of 
 Justice, and the Judges thereof, as the case may be, had been 
 named therein instead of such Courts, so consolidated as afore- 
 said, or the Judges thereof ; and in all cases not hereby expressly 
 provided for in which, under any such Statute, the concurrence 
 or the advice or consent of the Judge or any Judges, or of any 
 number of the Judges, of any one or more of the Courts so con- 
 solidated is made necessary to the exercise of any power or 
 authority capable of being exercised after the commencement 
 of this Act, such power or authority may be exercised by and 
 with the concurrence, advice, or consent of the same or a like 
 number of Judges of the said High Court of Justice ; and any 
 
OFFICERS AND OFFICES. 
 
 103 
 
 general or other commission, by virtue whereof any Judges of 
 any of the Courts so consolidated may, at the commencement 
 of this Act, be empowered to try, hear, or determine any causes 
 or matters civil or criminal, shall remain and be in full force 
 and effect, unless and until they shall respectively be in due 
 course of law revoked or altered. 
 
 See Imp. Act of 1873, s. 76. * 
 
 PART V. 
 
 OFFICERS AND OFFICES. 
 
 68, Subject to orders of the Lieutenant-Governor in Council, 
 all officers, save as hereinafter mentioned, who at the time of the 
 commencement of this Act shall be attached to the Court of Chan- 
 cery shall be attached to the Chancery Division of the said High 
 Court; and all officers who at the time of the commencement of 
 this Act shall be attached to the Court of Queen's Bench shall 
 be attached to the Queen's Bench Division of the said High 
 Court; and all officers who at the time of the commencement of 
 this Act shall be attached to the Court of Common Pleas shall 
 be attached to the Common Pleas Division of the said High 
 Court. 
 
 See R. Sup. C, O. 60, r. 1. 
 
 (2) Subject as aforesaid, the above provision shall not 
 
 apply to the Master in Ordinary or local masters of 
 the Court of Chancery, or to the taxing officers, and 
 all these officers shall be officers of the Supreme 
 Court and attached thereto. 
 
 (3) All officers shall hold their offices by the same tenure, and 
 
 upon the same conditions as to security and otherwise, 
 as if this Act had not passed. 
 
 See Imp. Act of 1879, s. 23. 
 
 (4) Where a doubt exists as to the position under this Act 
 
 of any existing officer attached to any Court or Judge 
 affected by this Act, such doubt may be determined 
 W Rule of Court. The Lieutenant-Governor in 
 Cfouncil shall have the power, and (subject to any 
 Order in Council) the Judges of the said Supreme Court 
 
 CP 
 
 
104 JUDICATURE ACT. 
 
 shall have power, to change the official names of 
 offices and officers, and to change and regulate the 
 duties of the officers. 
 
 See Imp. Act of 1879, s. 24. 
 
 (5) Any officer who is removable by the Court to which he 
 ' is now attached shall be removable by the Court to 
 
 which he shall be attached under this Act, or by the 
 majority of the Judges thereof. 
 
 See Imp. Act of 1873, b. 77; R. S. 0., c. 40, s. 11. 
 
 59. Subject to any Order in Council in that behalf, the 
 business to be performed in the High Court of Justice and in 
 the Court of Appeal respectively, or in any Divisional or other 
 Court thereof, or in the chambers of any Judge thereof, other 
 than that performed by the Judges, shall be distributed among 
 the several officers attached to the said Courts by section 58 
 in such manner as may be directed by Rules of Court ; and 
 such officers shall perform such duties in relation to such 
 business as may be directed by Rules of Court ; and, subject to 
 such Order in Council and Rules of Court, all such officers 
 respectively shall continue to perform the same duties, as nearly 
 as may be, and in the same manner as if this Act had not 
 passed. 
 
 See Imp. Act of 1873, s. 77, fourth paragraph. 
 
 60. All bonds, and securities heretofore given by Govern- 
 ment officers and their sureties or by other persons, shall be 
 held to be and continue binding, notwithstanding the changes 
 effected by this Act, except in the case of any surety who, at 
 least one calendar month before this Act goes into effect, gives 
 notice in writing to the Provincial Secretary of his wish to be 
 relieved of his liability. 
 
 See 32 Vic, c. 29, s. 17; 40 Vic, c 6, s. 9 (D) ; ^^ before this Act goes into effect" 
 See sec 2. 
 
 61. Every officer of the Court hereafter appointed before 
 he enters upon his duties shall take and subscribe the following 
 
 oath : " I, A. B. of , do hereby solemnly swear that I will, 
 
 according to the best of my skill, learning, ability and judgment, 
 well and faithfully execute and fulfil the duties of the office of 
 (m the, case may be) without favour or affection, prejudice or 
 partiality, to any person or persons whomsoever : So help me 
 God." 
 
 See R. S. O., c. 40, s. 12. 
 
*■■ ■-If 
 
 OFFICERS AND OFFICES. 
 
 106 
 
 (2) When not convenient to a person appointed to any office 
 to attend at Toronto to take the oath of office, the 
 oath may be taken before the Judge of the County 
 Court of the County in which such officer resides, or 
 before any Commissioner authorized to administer 
 affidavits in such County, and the oath shall be certi- 
 fied by such Judge or Commissioner and filed amongst 
 the records of the Court at Toronto. In all other 
 cases the oath shall be administered to the officer by 
 the Judges or one or more of them in open court. 
 
 See R. S. 0., c. 40, ss. 13, 14. 
 
 62. Subject to any Rules of Court, the Master in Chan- 
 cery, the Clerks of the Crown and Pleas, the Referee in 
 Chambers, the Accountant, the Inspector of Titles, the Referee 
 of Titles, the Local Masters of the Court of Chancery, 
 and any other officers of the Superior Courts of Law and 
 Equity, shall respectively have (under the said names or any 
 names which by or under this Act are or shall be given to them 
 or any of them) the same judicial and other powers in respect of 
 business in each and every of the Divisions of the said High 
 Court as they have now in respect of the business of the Court 
 to which they are attached ; and the orders and decisions of the 
 said officers shall be subject to appeal as heretofore. 
 
 See R. S. 0., c. 39, ss. 29-32 ; c. 40, ss. 8, 9, 10, 28, 29, c. 50 s. 189, etseq; c. 
 110, 8. 23; Reg. Gen. of Feb., 1870, (29 U. C. R. 623) ; G. O. Chy. Nos, 14, 16, 34- 
 38, 197, 211-254, 495, 531, 534, 560, 589, 625, 626, 633, 634, 636, 638, et seg. 
 
 ^'Clerks of the Crown and Pleas, the Referee in Chambers." — Under the former 
 practice the Clerk of the Crown and Pleas of the Court of Queen's Bench and the 
 Referee exercised lar^e judicial powers in Chambers. By O. XLIX, r. 6, it is 
 provided that there is to be a Master in Chambers who is to have the power, 
 authority and jurisdiction heretofore in like cases possessed in the Superior Courts 
 respectively by the Clerk of the Crown and Pleas, of the Court of Queen's Bench 
 and by the Referee in Chambers of the Court of Chancery. This order gives "the 
 power, authority and jurisdiction," not merely the like power, etc. It is probable 
 that the words "subject to any rules of Court," in the above section of the Act, are 
 BuiBcient to prevent any conflict, and taken in connection with the rule quoted, to 
 shew the intention to supersede the two former officers, so far as their Chamber 
 duties are concerned, by the Master in Chambers. 
 
 " Appeal as heretofore." From Masters' in Chancery. See G. 0. Chy., No. 642 
 post. From the Clerk of the Crown and Pleas of the Court of Queen's Bench. Reg. 
 Gen of Hilary Term, 1870, (29 U. C. R. 624) provides as follows :— "That appeals 
 from the Clerk's order or decision shall be made by summons, such summons to 
 be taken out within four days after the decision complained of, or such further 
 time as may be allowed by a Judge or the said Clerk ; the appeal to be no stay, un- 
 less so ordered by a Judge or the said Clerk. The costs of such appeal shall be in 
 the discretion of the Judge. 
 
 From the Referee in Chambers. — Appeals from the Referee in Chambers have 
 been made to the presiding Judge in Chambers on Mondays, two clear days' notice 
 of motion having oeen given, and the appeal set down not later than the preceding 
 Saturday, G. 0. Chy. 591. The appeals had to be made within 14 days, G. O. 
 Chy. 566. 
 
 m 
 
 CD 
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 1 
 
106 
 
 JUDICATURE ACT. 
 
 t; r 
 
 By O. XLIX., r. 13, provision ia made for appeals from the Master in Chambers 
 in whom is vested (by O. XLIX., r. 6) the former jurisdiction of the Clerk of the 
 Crown and Pleas of the Court of Queen's Bench, and the Referee in Chambers. 
 It is presumed that the practice there prescribed will supersede the former 
 practice. 
 
 ^^From the Accountant." — There has been no such officer as the Accountant since 
 26th June, 1876. By G. O. Chy. 625, from and after that date the duties formerly 
 discharKed by the Accountant were imposed upon the Referee in Chambers, and 
 by G. O. Chy. 626 the words "Referee in Chambers " were substituted for " Ac- 
 countant " wherever it occurred in the General Orders. 
 
 By O. LVI., r. 5, the ReRistrar of ths Court of Chancery is to act as Account- 
 ant of the Supreme Court, until and unless some other person is appointed to that 
 office. 
 
 "From the Inspector of Titles, the Referee of Titles," — See the Quieting Titles 
 Act, 29 Vic, c. 25, and G. O. Chy. 492 et seq. 
 
 63. Subject as aforesaid, the Judges of the County Courts 
 and the officers specially named in the last preceding section, 
 shall be official referees for the trial of such questions as shall 
 be directed to be tried by such referees. 
 
 See Imp. Act of 1873, ss. 57, 83 j R. Sup C, June, 1876, rr. 14-16 ; R. S. O., 
 
 0. 60, 8. 189. 
 
 " To be tried by such referees." — See sees. 47, 48. 
 
 (2) In case the business is found to require other or 
 
 additional official referees, and the Presidents of the 
 • said Divisions so certify, the Lieutenant-Governor 
 
 from time to time may appoint other and additional 
 official referees accordingly. 
 
 See Imp. Act of 1873, s. 83. 
 
 (3) In the case of officers who are paid by salary, the fees 
 
 on any reference or trial shall be paid in stamps ; 
 other referees shall be paid by fees. 
 
 '{^ 
 
 ill \- m 
 
 64. There shall be a Local Master in every County or Union 
 of Counties other than the County of York, and every Local 
 Master hereafter appointed shall reside in the county to which 
 he is appointed. 
 
 (2) Where there is no Local Master at the commencement 
 of this Act, or when a vacancy occurs in the office 
 of Local Master, the Judge of the County Court for 
 the County shall be the Local Master until and 
 unless another person is appointed Local Master. In 
 such case if there are two County Judges — a Senior 
 and Junior Judge — both Judges shall be Local 
 Masters until and unless one of them or some other 
 person is appointed sole Local Master. 
 
w 
 
 "f^ 
 
 OFFICERS AND OFFICES. 
 
 107 
 
 (3) Where a County Court Judge is the Local Master, the 
 
 County Court Clerk shall be the Deputy Registrar. 
 
 (4) The offices of Deputy Clerk of the Crown and Deputy 
 
 Registrar (not Local Master) shall be consolidated as 
 vacancies occur in either ; unless where the Presidents 
 of the Divisions of the High Court or a majority 
 recommend otherwise. 
 
 Although the offices of Deputy Registrar and Local Master have heretofore 
 been united in one person their duties have been distinct. The duties of the 
 Deputy Registrar being similar to those of the Clerk of Records and Writs in 
 Toronto, and the Local Master having within their respective counties all the 
 jurisdiction of the Master-in-Oidinary with certain additional powers, G. O. '^hy. 
 Nos. 34-37. 
 
 (5) Where a reference is made to a Deputy Clerk of the 
 
 Crown, or an examination is taken by him, he shall 
 be entitled to take and receive to his own use the fees 
 on such reference or examination. 
 
 See R. S. 0., c. 50, s. 189 el seq. 
 
 (6) The Lieutenant-Governor in Council may commute the 
 
 fees of a Local Master, or of a Local Master and 
 Deputy Registrar, including his fees as an official 
 referee, for a fixed annual sum, such sum not to ex- 
 ceed the average income derived from fees for the 
 preceding five years. 
 
 (7) The Lieutenant-Governor in Council may commute the 
 
 fees payable to a Deputy Clerk of the Crown on re- 
 ferences and examinations and other matters for a fixed 
 annual sum, such sum not to exceed the average income 
 derived from such fees during the preceding five years. 
 
 (8) Any annual sum so fixed as provided in the preceding 
 
 two sub-sections shall continue until varied by Order 
 in Council, but any order for payment of any such 
 annual sum as aforesaid may be rescinded, and the 
 amount of such sum may by Order in Council be in- 
 creased or diminished, provided that in no case shall 
 any Order in Council name a sum exceeding the 
 average income or fees aforesaid (as the case may be) 
 during the preceding five years. 
 
 (9) The local masters, deputy registrars, and local clerks, 
 
 shall hereafter, like other officers, be appointed by the 
 Lieutenant-Governor, and shall hold office during the 
 pleasure of the Lieutenant-Governor. 
 
 S 
 
 1 
 
108 JUDICATURE ACT. 
 
 (10) Where a Local Master, or Deputy Registrar, or Deputy 
 
 Clerk of the Crown, or other officer, is paid by a salary, 
 he shall not, save as hereinbefore expressly provided, 
 take for his own benefit, directly or indirectly, any fee 
 or emolument, save the sslary to which he may be 
 entitled ; but the like sums and fees heretofore pay- 
 able on proceedings in his office shall continue to be 
 payable ; and all such fees shall form part of the Con- 
 solidated Revenue Fund of this Province, and shall be 
 payable in stamps, subject to the provisions of the Act 
 respecting Law Stamps. 
 
 SeeR. S. O., c. 40, s. 16. 
 
 (11) No Local Master whose gross income from his office of 
 
 Local Master or of Deputy Registrar and Local Master, 
 is $2,000 or upwards shall, during the continuance of 
 his appointment, directly or indirectly, practise in the 
 profession of the law as Counsel, Attorney, or Solici- 
 tor, or as a Notary Public, or Conveyancer, or do 
 any manner of conveyancing, or piepare any papers 
 or documents to be used in any Court of this Pro- 
 vince, under the penalty of forfeiture of office, and the 
 further penalty of $400, to be recovered by any per- 
 son who sues for the same by action in the High 
 Court, and one-half of such pecuniary penalty shall 
 belong to the party suing, and the other half to Her 
 Majesty for the use of the Province; but nothing in 
 this section shall prevent the Lieutenant-Governor in 
 Council, or the High Court, from requiring a Local 
 Master whose income docs not amount to $2,000, to 
 abstain from practising under the like penalties. 
 See R. S. 0., c. 42, s. 5. 
 
 (12) The High Court may, with the concurrence of the 
 
 Lieutenant-Governor, relieve any person now holding 
 the office of Local Master and Deputy Registrar, or 
 any other officer from the operation of the preceding 
 first and eleventh sub-sections or either of them. 
 
 (13) Every stamp affixed to any matter or proceeding under 
 
 the authority of the Revised Statute respecting 
 Law Stamps, shall be cancelled in such manner as the 
 Lieutenant-Governor in Council may direct ; and in 
 case the Lieutenant-Governor thinks fit to dispense 
 therewith, it shall not be necessary for the officer who 
 
OFFICERS AND OFFICES. 
 
 109 
 
 cancels the stamps to mark thereon, in ink, the date 
 of the issue or receipt of the matter, or proceeding 
 to which the stamp is affixed. 
 
 See R. S. 0., c. 21, a. 15. 
 
 (14) Every officer paid by fees shall yearly, and on or 
 before the 15th day of January in every year, trans- 
 mit to the Treasurer of the Province a just, true and 
 faithful account, to be verified upon oath, of the 
 amount of fees paid or payable to him in respect of his 
 office during the preceding year. 
 
 See R. S. O., c. 16, s. 37 ; 43 Vic, c. 3. 
 
 (15) The Lieutenant-Governor or the member of the Govern- 
 ment having charge of the matter may require the 
 return to state any particulars, or to be made in any 
 form, that may be thought proper, and such return 
 shall be made accordingly. 
 
 65. No Clerk or Registrar of the Surrogate Court shall for fee 
 or reward draw or advise upon any will or other testamentary 
 paper, or any paper or document connected with the duties of his 
 office for which such fee is not expressly allowed to him by the 
 Uritf in that behalf ; and no Clerk of a County Court shall for 
 fee or reward draw or advise upon any chattel mortgage, or 
 a-y other paper or document connected with the duties of his 
 oirice and for which a fee is not expressly allowed by the 
 tariff in that behalf. 
 
 66. Thore shall be an official Guardian ad litem of infants ; 
 and the sol itor heretofore usually appointed by the Court of 
 Chancery as guardian ad litem of infants shall be the first 
 Official Guardian, and shall hold office during pleasure as if 
 appointed by the Lieutenant-Governor. 
 
 (a) In ;ase of a vacancy the appointment shall be by the 
 Lieutenant-Governor, as in the case of the other 
 officers of the Courts ; and the person appointed shall 
 be a Barrister-at-Law and Solicitor of this Province, 
 of not less than seven years standing, and shall hold 
 office during pleasure ; 
 
 (6) The official Guardian, besides acting as guardian ad 
 litem of infants under Rules of Court and other 
 orders, shall perform such other duties as a Divisional 
 Court or Judge may from time to time direct. 
 
 £ 
 
 CD 
 
110 
 
 JUDICii.TURE ACT. 
 
 (2) The same costs as hitherto shall be paid to the guardian 
 by any party ; and the same costs as hitherto shall be 
 payable to the guardian out of funds in Court ; but 
 all costs so paid to the Guardian by any party in 
 respect of any business done after the commence- 
 ment of this Act shall be by such Guardian paid 
 forthwith into Court with the privity of the Accoun- 
 tant of the High Court, and shall be placed to the 
 credit of an account to be intituled "Account of Official 
 Guardian ac? litem;" and all costs payable to the 
 Guardian out of any funds in Court, in respect of any 
 business done after the commencement of this Act shall 
 be transferred to the credit of the same account. 
 
 1 'n 
 
 (3) Where the estate is small, and, in view of the amount 
 
 at the credit of the said account, the amount or part 
 of the amount payable out of the estate for the 
 Guardian's costs does not appear to be required to 
 pay the salary and disbursements of the official 
 Guardian, the Court may withhold payment out of 
 such estate of the sum or any part of the sum due 
 for the Guardian's costs in respect .T auch estate ; and 
 may distribute the estate as if such costs were not 
 payable by or out of the same. 
 
 (4) There shall be paid to the said Guardian in respect of 
 
 all business done after the commencement of this Act 
 a fixed salary of such sum per annum as, in view of the 
 amount of business done or to be done by the Guardian, 
 and the sum at the credit of the said account, the said 
 Judges shall think reasonable, and the Lieutenant- 
 Governor in Council approve ; which salary shall be 
 over and above all necessary disbursements ; and the 
 salary and disbursements shall be paid monthly or 
 otherwise as shall be determined by rule of Court, out of 
 the fund at the credit of the said account of official 
 Guardian ad litem, and not otherwise. 
 
 (5) The surplus appearing from time to time at the credit 
 
 of the said account beyond what may be required to 
 pay the charges on the said account, shall be trans- 
 ferred to the " Suitors' Fee Fund Account." 
 
 "Suitor's Fee Fund."' — R. S, O., c. 40, b. 104, enacted as foiltws : — A feeof ten 
 cents shall be paid to the officer with whom pleadings are directed to be filed, on 
 the filing of every bill ami of every answer or demurrer in addition to the other fees 
 and charfros thereon ; and such fee shall be paid into an account to be called "The 
 
OFFICIAL GUARDIAN. 
 
 Ill 
 
 Suitor's Fee Fund Account," which account shall be kept and managed as may 
 from time to time be directed by the Court, and the sums at the credit of such ac- 
 count shall be applied by the Court as may be necessary for the protection of in- 
 fants and other persons not sui juris or non compotes mentes, in whose behalf pro- 
 ceedings may be had in the Court, or may, by the Court be ordered to be had in 
 other Courts. This section so far as it directed payment of any fee to "The 
 Suitor's Fee Fund Account " was repealed by 41 Vic. c. 8, s. 5, 0. 
 
 (6) Where the official Guardian has occasion to employ a 
 
 Solicitor in another County for the purpose of any 
 proceeding in a suit, such Solicitor shall be entitled 
 to receive from the official Guardian in respect of 
 such proceeding the same costs as if the Solicitor so 
 employed were Solicitor and Guardian of the Infant. 
 
 " TAe same costs." — It is presumed that these costs will be taxed costs, and not a 
 portion of the official guardian's salary. 
 
 (7) The Official Guardian ad litem shall once every 6 
 
 months tile in the Accountant's office an affidavit, 
 shewing all costs recovered by him as Official Guar- 
 dian ad litem, during the 6 months preceding the 
 making of such affidavit, giving therein the several 
 amounts received by him, and the name or names of 
 the suits and matters in which the same werfs respect- 
 ively received by him, together with the date of 
 receipt. 
 
 Z 
 
 (8) When a new official Guardian ad litem is appointed, 
 
 he shall ipso facto become, and be by virtue of such 
 appointment. Guardian ad litem to all infants, in the 
 place and stead of his predecessor, with the same 
 duties and powers ; and the latter (his executors or 
 administrators, as the case may be) shall forthwith 
 deliver over to the new Official Guardian all letters, 
 papers, documents and books in his possession or 
 power as Official or other Guardian ad litem of 
 infants ; and the new guardian shall forthwith com- 
 municate his appointment to whom it may concern. 
 
 (9) The Lieutenant-Governor in Council, or the High Court, 
 
 may order that the official Guardian is not to practise 
 as a Barrister or Solicitor, and in such case he shall 
 not, during the continuance of his appointment and 
 of such order, directly or indirectly practise the 
 profession of the law as Counsel or Solicitor, or as a 
 Notary Public, or Conveyancer, or do any manner 
 of conveyancing, or prepare any papers or docu- 
 
 CD 
 
 1 
 
^l f ■' I 
 
 i 
 
 112 
 
 JUDICATURE ACT. 
 
 ments to be used in any Court of this Province, 
 except in the discharge of his duties as official guar- 
 dian, or of any other duties which may be assigned 
 to him by the said High Court or any Division or 
 Judge thereof as the case may be ; and the said official 
 Guardian in case of his offending in the matter afore- 
 said shall be subject to a penalty of forfeiture of 
 office, and the further penalty of $400 to be recovered 
 by any person who sues for the same by action in 
 the High Court ; and one half of such pecuniary 
 penalty shall belong to the party suing, and the 
 other half to Her Majesty for the use of the Province. 
 
 See R. S. O., c. 42, s. 5. 
 
 67. The Accountant shall yearly and on or before the 
 15th day of January in every year transmit to the Lieutenant- 
 Governor in Council a just, true and faithful statement, shewing 
 the state of the "Account of official Guai Jian ad litem" upon the 
 31st day of the preceding December. 
 
 See R. S. 0., c. 50, b. 121. 
 
 68. In all cases in which any interest in real or personal 
 estate, effects or property is vested in the Accountant for the 
 time being of the High Court, as such Accountant and in re- 
 spect of his office, all such real and personal estate, effects and 
 property whatsoever, upon the death, resignation, or removal 
 from office of each and every Accountant of the said Court 
 from time to time, and as often as the case happens, and the 
 appointment of a successor takes place, shall, subject to the 
 same trusts as the same were respectively subject to, vest in 
 the succeeding Accountant by force of this Act. 
 
 SeeR. S. 0.,c. 40, s. 32. 
 
 "Accountant." — See notes to sec. 62. 
 
 All lands, mortgages, securities, etc., were by R. S. 0., c. 40, s. 31, vested in 
 the Referee in Chambers, and by G. O. Chy., No. 632, bonds and recognizances 
 under C. S. U. 0. 12, s. 34, sub-s. 3, or sec. 37, sub-s. 1, and inventories filed in 
 pursuance of sec. 37, sub-s. 2 of the same Statute shall be filed in the office of the 
 Clerk of Records and Writs. See following sub-sections. 
 
 (2) In case of there being at any time no Accountant of 
 the High Court, all mortgages, stocks, funds, annui- 
 ties and securities whatsoever theretofore standing 
 in the name of any Accountant, or in his custody 
 or power in respect of his office, together with all the 
 interest and estate of the said Accountant in the lands 
 and premises embraced in such mortgages or other 
 
;l 
 
 ( 1 XSRS AND OFFICES. 
 
 113 
 
 securities, shall become and be, by force of this Act, 
 vested in such other officer as the High Court, by 
 general order, may, from time to time, direct, subject 
 to the same trusts as they may then respectively 
 be subject to. 
 
 See R. S. O., c. 40, s. 31. 
 
 (3) All mortgages, stocks, funds, annuities and securities 
 whatsoever, at the time of the commencement of this 
 Act, standing in the name of the Accountant of the 
 Court of Chancery, or of the Referee in Chambers, or 
 any other officer named by the Court for the purpose 
 under the authority of the 31st section of the Chan- 
 cery Act, or in his custody or power as such Account- 
 ant, Referee in Chambers or other officer aforesaid, 
 together with all the interest and estate of the said 
 Accountant, Referee in Chambers or other officer, in 
 the lands and premises embraced in sucii mortgages ^r 
 other securities, shall become and be vested in the 
 Accountant of the High Court for the time being, as 
 such Accountant, or in sucV other officer as the Court 
 by general order may froi i time to time direct, sub- 
 ject to the same trusts as they may then respectively 
 be subject to. 
 
 See R. S. O., c. 40, a. 31. 
 
 69. The expenses of the Accountant's Office including all 
 salaries shall, from the 1st day of April, 1881, be the first 
 charge on the income arising from the funds in Court. 
 
 ^^ Income," — The income referred to is probably the interest allowed upon the 
 balances from time to time in the bank in which the Court moneys are deposited. 
 
 ■■(■ ' 
 
 70. The Lieutenant-Governor may from time to time ap- 
 point one of the officers of the High Court, or some other com- 
 petent person, to inspect the offices of the Sheriffs, Local 
 Masters, Deputy Registrars, Deputy Clerks of the Crown, Loc-^l 
 Registrars of the High Court, Registrars of Surrogate Coutc, 
 Clerk of the Peace, and County Crown Attorneys, and Clerks 
 of the County Court, in the respective Counties of the Prov- 
 ince. 
 
 See 43 Vic, c. 8, s. 24. 
 
 The duty of the Inspector for the time being shall be : — 
 8 
 
 w 
 
 V' 
 
t' ' 
 
 114 
 
 JUDICATURE ACT. 
 
 ''d ;! 
 
 (1) To make a personal inspection of the said offices and 
 
 of the books and Court papers belonging thereto 
 respectively ; 
 
 (2) To see that proper books are provided, that they 
 
 are in good order and condition, that the proper en- 
 tries and records are made therein in a proper manner, 
 at proper times, and in a proper form and order, and 
 that the Court papers and documents are properly 
 classified and preserved ; 
 
 (3) To ascertain that the duties of the officers are duly and 
 
 efficiently performed ; 
 
 (4) To see that proper costs and charges only are allowed 
 
 or exacted ; 
 
 (5) To ascertain that proper security has been given by 
 
 any officer required by law to give security ; 
 
 (6) To ascertain whether uniformity of practice prevails in 
 
 the several offices of the High Court and in the 
 County and Surrogate Courts ; 
 
 (7) To report upon all such matters, as expeditiously as 
 
 may be, to the Lieutenant-Governor. 
 
 71. When the said Inspector has occasion to institute 
 an inquiry into the conduct of any officer in relation to his 
 or their official duties or acts, it shall be lawful for the said 
 Inspector to require such officer, or any other person or persons, 
 to give evidence on oath ; and for this purpose the said In- 
 spector shall have the same power to summon such officers and 
 other persons to attend as witnesses, to enforce their attendance, 
 and to compel them to produce books and documents and 
 give evidence, as any Court har, in civil cases. 
 
 See 43 Vic, c. 8, 8. 24. 
 
 73. The said several officers shall, as often as required by the 
 said Inspector, produce for examination and inspection all 
 books and documents which are required to be kept by them, 
 or which may hereafter be required to be kept by them ; and 
 shall report to the Inspector all such matters relating to any 
 cause or proceeding as the Inspector shall require. 
 
 See 43 Vic, c. 8, 8. 26. 
 
T 1' 
 
 SOLICITORS, 
 
 115 
 
 73. Every person who at the commencement of this Act 
 shfJl be authorized to take recognizances of bail, or to administer 
 oaths and take affidavits and affirmations, in any of the Courts 
 whose jurisdiction is hereby^ vested in the High Court of 
 Justice, shall be a commissioner for the said purposes in all 
 causes and matters whatsoever which may from time to time 
 be depending in the said High Court. 
 
 See Imp. Act of 1873, s. 82 ; R. S. O., c. 63 ; s. 80. 
 
 Solicitors. 
 
 74. From and after the commencement of this Act all per- 
 sons heretofore admitted as solicitors or attorneys of, or by law 
 empowered to practise in, any Court the jurisdiction of which is 
 hereby vested in the High Court of Justice, shall be called 
 Solicitors of the Supreme Court of Ontario, and shall be 
 entitled to the same privileges, and be subject to the same 
 obligations, so far as circumstances will permit, as if this Act 
 had jiot passed. 
 
 The common law title of Attorney gives place to the Chancery title of Solicitor. 
 
 (2) All persons who from time to time, if this Act had not 
 
 passed, would have been entitled to be admitted as 
 solicitors or attorneys of, or been by law empowered 
 to practise in, any such Courts, shall be entitled to be 
 admitted on payment of the fees now required for 
 admission to the Courts of Queen's Bench, Common 
 Pleas and Chancery, and shall be so admitted by any 
 Divisional Court, and shall be called Solicitors of the 
 Supreme Court of Ontario, and shall, as far as circum- 
 stances permit, be entitled as such solicitors to the same 
 privileges and be subject to the same obligations as if 
 this Act had not passed. 
 
 (3) Any solicitors or attorneys to whom this section applies 
 
 shall be deemed to be officers of the said Supreme 
 Court ; and that Court, and the High Court of Jus- 
 tice and the Court of Appeal respectively, or any 
 Division or Judge thereof, may exercise the same juris- 
 diction in respect of such solicitors or attorneys as any 
 one of the Superior Courts or a Judge thereof might, 
 previously to the passing of this Act, have exercised 
 in respect of any solicitor or attorney admitted to 
 practise therein. {See Imp. Act of 1873, s. 87.) 
 
 See Imp. Act of 1873, s. 87. 
 
 See also the Act respecting Attomeys-at-Law, R. S. C, c. 140 /w/. 
 
 
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 i|: 
 
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 ill . 
 
 'i 
 
 i 
 
 116 JUDICATURE ACT. 
 
 PART VI. 
 
 COUNTY COURTS AND JUDGES. 
 
 75. Section one of chapter 22 of the Acts of the Legisla- 
 ture of this Province, passed in the 32nd year of her Majesty's 
 reign is repealed, and section 2 of chapter 15, of the Con- 
 solidated Statutes of Upper Canada shall not be affected 
 by the said Act or by any other enactment of the Legislature 
 of this Province heretofore passed and purporting to repeal 
 the same. 
 
 C. S. T7. 0. c. 15, s. 2, is as follows : — ^The Governor shall from time to time 
 appoint, under the Great Seal, one person or two persons, being a barrister or bar- 
 risters of at least five years' standing at the Bar of Upper Canada, to be the Judge 
 or Junior Judge in each of the said Courts. 
 
 32 Vic. c. 22, s. 1, is as follows :— Section two of chapter fifteen of the Consoli- 
 idated Statutes of tipper Canada, entitled An Act respecting County Courts, is 
 hereby repealed. 
 
 76. The Judges of the several County Courts shall be 
 Judges of the High Court for the purposes of their jurisdiction 
 in actions in the High Court ; and in the exercise of such juris- 
 diction may be styled " Local Judges of the High Court," and 
 shall, in all causes and actions in the High Court, have, sub- 
 ject to Rules of Court, power and authority to do and perform 
 all such acts, and transact all such business as the Judges of 
 the County Courts have now in actions in the Courts of Queen's 
 Bench and Common Pleas ; and to do and perform such other 
 acts and business in respect to matters and causes in and before 
 the High Court as they may by Rules of Court in that behalf 
 from time to time be empowered to uo. 
 
 See R. S. 0. c. 39, s. 29 ; c. 40, s. 28 ; c. 50, s. 148 ; R. Sup. C. 0. XXXV. r. 4 ; 
 R. Sup. C. April, 1880, r. 11. 
 
 The powers which the County Court Judges have in respect of actions in the 
 Court of Queen's Bench and Common Pleas are as follows : — 
 
 Chamber applications. — R. S. O. c. 50, s. 148. In actions in either of the 
 Superior Courts, the Judge or acting Judge of the County Court for the county in 
 which the action has been brought or the venue laid, may, upon the application 
 of the plaintiff or defendant in such action, grant summonses and orders for time 
 to declare, plead, reply or rejoin, and for particulars of demand, or set-off, and may 
 grant summonses and orders for payment of money into Court, for the allowance 
 of bail, or for security for costs ; and such Judge of the County Court may hear 
 and determine such applications, grant such summonses, impose such terms, and 
 make such orders as might be granted, imposed and made m the like cases by a 
 Judge of one of the Superior Courts sitting in Chambers. 
 
 2. This section shall not apply to any action wherein the venue is laid in the 
 County of York, or to any action wherein the attorney for the defendant, or. in 
 case of two or more defendants, where the attorney for any on^ or more of them resides 
 in a county or union of counties different from that in whi^h the attorney for the 
 plaintiff, or, if he prosecutes in person, in which the plaintiff resides. 
 
COUNTY COURTS A¥D JUDGES. 
 
 117 
 
 Orders to Examine, R, S. 0., c. 80, s. 157. Where the attorneys of the plain- 
 tiff and defendant reside in the same county, an order for oral examination under 
 the preceding section in any actionpending in either of the Superior Courts of Law, 
 may be made by the Judge of the Cfounty Court of the said county ; but this sec- 
 tion shall not apply to the County of York. 
 
 Orders for Writs of Replevin, R. S. O., c. 53, s. 9. In case a writ of replevin is 
 issued whether with or without an order, or in case any rule or order is made under 
 the seventh or eighth sections, the defendant may, at any time or from time to 
 time, apply to the Court or Judge, on affidavit or otherwise, for a rule or order on 
 the plamtiff to shew cause why the writ, or why the rule or order respecting the 
 same, should not be discharged, or why the same should not be varied or modified, in 
 whole or in part as therein specified, or wh^ all further proceedings under the writ 
 should not be stayed, or why any other relief, to be referred to in the rule or order 
 so applied for, should not be granted to the defendant with respect to the return, 
 safety or sale of the property or any part thereof or otherwise ; and the Court or 
 Judge may make such rule or order thereon as, under all the circumstances, best 
 consists with justice between the parties. 
 
 Garnishee Orders, R. S. O. c. 60, s. 311. In cases in the Superior Courts 
 where the amount claimed as due from any garnishee is within the jurisdiction of a 
 County or Division Court, the order to appear, made under the three hundred and 
 eighth section, shall be for the garnishee to appear before the Judge of the County 
 Court of the county within which the garnishee resides, at some day and place 
 within his county to be appointed in writing by such Judge, and written notice 
 thereof shall be given to the garnishee at the time of the service of the order. By 
 section 312 if the garnishee does not forthwith pay the amount due by him and does 
 not diBDute the debt, or if he does not appear before the Judge named in the order 
 at the aav and place appointed by such Judge, then such Judge, on proof of service 
 of the order ana appointment having been made from days previous, may order 
 execution. 
 
 Writs of Capias, see R. S. O. c. 67, s. 5. 
 
 Writs of Attachment, see R. S. 0. c. 68, s. 2. 
 
 Porwer to try actions, see R. S. O. c. 48, ss. 31-44 in notes to sec. 45. 
 
 Interpleader, see 44 Vic, c. 7. 
 
 77. Every County and Division Court shall as regards all 
 causes of action within its jurisdiction for the time being, have 
 power to grant and shall grant in any proceeding before such 
 court such relief, redress, or remedy, or combination of remedies, 
 either absolute or conditional, and shall in every such proceed- 
 ing give such and the like eflfect to every ground of defence or 
 counter-claim, equitable or legal (subject to the provision next 
 hereinafter contained), in as full and ample a manner as 
 might and ought to be done in the like case by the High 
 Court of Justice. 
 
 See Imp. Act of 1873, s. 89. 
 
 78. Where in any proceeding before any such County or 
 Division Court any defence or counter-claim of the defendant 
 involves matter beyond the jurisdiction of the court,such defence 
 or counter-claim shall not affect the competence or the duty of 
 the court to dispose of the whole matter in controversy so far 
 as relates to the demand of the plaintiff and the defence thereto, 
 but no relief exceeding that which the court has jurisdiction to 
 administer shall be given to the defendant upon any such coun- 
 ter-claim: 
 
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 118 
 
 JUDICATURE ACT. 
 
 Provided always, that in such case it shall be lawful for 
 the High Court or any Division or Judge thereof, if it 
 shall be thought fit, on the application of any party to the 
 proceeding, to order that the whole proceeding be trans- 
 ferred from such court to the High Court, or to any Division 
 thereof; and in such case the Record in such proceeding shall 
 be transmitted by the Clerk or other proper officer, of the 
 County or Division Court to the said High Court ; and the 
 same shall thenceforth be continued and prosecuted in the 
 said High Court as if it had been originally commenced 
 therein. 
 
 See Imp. Act of 1873, a. 90. The application will not be granted ex parte 
 Anon. W. N. 1876, 12. 
 
 79. The Lieutenant-Governor in Council may, with the 
 consent of any County Court or Surrogate Court Judge, 
 commute the fees payable to him under the Surrogate Courts 
 Act for a fixed annual sum; such sum not to exceed the 
 income derived from such fees in some preceding year ; and 
 any sum so fixed may, as vacancies occur, be rescinded, or may 
 be varied and the amount increased or diminished ; provided 
 that in no case shall any Order in Council name a sum exceed- 
 ing the receipts for fees during some preceding year. 
 
 (2) In case of such commutation, the like sums and fees 
 
 heretofore payable to such Judge shall continue to be 
 payable, and shall form part of the Consolidated 
 Revenue Fund of this Province, and shall be payable 
 in stamps, subject to the provisions of the Act res- 
 pecting Law Stamps. 
 
 See B. S. 0., c. 40, s. 16. 
 
 (3) Where there is no commutation and the fees aforesaid 
 
 exceed the sum of $1,000 in any year, the excess shall 
 be received by the Registrar and paid over to the 
 Treasurer of the Province for the uses of the Province. 
 
 (4) The preceding sub-section shall not apply so as to 
 
 reduce the amount payable to the Judge in any year 
 to a sum less than the aggregate amount of the fees 
 payable to him for such year in respect of fees pro- 
 vided for by the Consolidated Statutes of Upper 
 Canada, chapter 16, schedule " B," and exclusive of 
 the additional fees assigned to Surrogate Judges by 
 the Act passed in the fortieth year of Her Majesty s 
 reign, chapter 7, schedule "A" (65). 
 
MISCELLANEOUS PROVISIONS. 
 
 119 
 
 (5) Out of the excess aforesaid a sum not exceeding S666 
 may on the authority of an Order in Council be paid 
 to the Junior Judge of the County (if any). 
 
 (6) This section, and the several sub-sections thereof, 
 shall operate from the first day of January last. 
 
 80. The several rules of law enacted and declared by this 
 Act shall be in force and receive effect in all courts whatsoever 
 in Ontario, so far as the matters to which such rules relate 
 shall be respectively cognizable by such courts. 
 
 Se« Imp. Act of 1873, s. 91. 
 
 PART VII. 
 
 MISCELLANEOUS PROVISIONS. 
 
 81. Every Order in Council determining the commutation 
 allowance or the salary of any Judge, Official Guardian or other 
 officer, under the authority of this Act, shall be laid before the 
 House of Assembly forthwith, if the Legislature is in session 
 at the date of the Order, and if the Legislature is not then in 
 session, the Order is to be laid before the said House within 
 the first seven days of the session next after the Order in 
 Council is made. 
 
 (a) In case the Assembly at the said session, or, if the 
 session does not. continue for three weeks after the said Order 
 is laid before the House, then at the ensuing session of tiie 
 Legislature, ilisapprove by resolution of such Order in Council, 
 either wholly, or so far as relates to any of the persons therein 
 named, the Order in Council, so far as so disapproved of, shall 
 have no effect from the time of such resolution being passed. 
 
 82. All books, documents, papers and chattels in the posses- 
 sion of any Court the jurisdiction of which is hereby vested 
 in the High Court of Justice, or of any officer or person 
 attached to any such Court, as such officer, or by reason of his 
 being so attached, shall be dealt with by such officer or person 
 in such manner as the High Court of Justice or the Supreme 
 Court may by order direct ; and any person failing to comply 
 with any order made for the purpose of giving effect to this 
 section shall be guilty of a contempt of the Supreme Court. 
 
 See Imp. Act of 1873, s. 92. 
 
 9 
 
120 
 
 JUDICATURE ACT. 
 
 * ■:: 
 
 k J. 
 
 83. Upon proof to the satisfaction of the Judge presiding at 
 the sittings of any Court of the service of a subpoena upon any 
 witness, who fails to attend, or to remain in attendance in 
 accordance with the requirements of the subpoena, and that 
 a sufficient sum for his fees as a witness had been duly 
 paid or tendered to him, and that the presence of such 
 witness is material to the ends of justice, the said Judge may, 
 by his warrant, cause such witness to be apprehended 
 and forthwith brought before him or any other Judge who 
 may thereafter preside at such sittings, to give evidence, and 
 in order to secure his presence as a witness, such witness may 
 be taken op such warrant before the presiding Judge and 
 detained in the custody of the person to whom the warrant is 
 directed, or otherwise, as the presiding Judge may order, until 
 his presence, as such witness, shall be required, or, in the 
 discretion of the said Judge, he may be released on a recogniz- 
 ance (with or without sureties), conditioned for his appearance 
 to give evidence. 
 
 See 32 & 33 Vic. (D), c. 30, s. 26 ; .39 Vic. (D), c. 36. 
 
 The matters to be proved are (1) service of a subpoena ; (2) failure to attend or 
 
 tajrment or tender of a sufficient sum for 
 le witness is material to the ends of justice. 
 
 to remain in attendance ; (3) payment or tender of a sufficient sum for witness 
 fees ; (4) that the presence of tne 
 
 84. Such warrant may be similar to form No. 184, in appen- 
 dix J hereto, and may be directed to any sheriff or other officer 
 of the Court, or to any constable, and may be executed in any 
 part of Ontario. 
 
 " No. 189" is a misprint for No. 184. 
 
 85. This Act is not intended to affect, and shall not affect, the 
 issue of any Commissions of Assize, Nisi Prius, Oyer and Termi- 
 ner, Gaol Delivery, or other commission for the discharge of civil 
 or criminal biisiness on circuit or otherwise ; or the authority 
 of a Judge or a retired Judge of any of the Superior Courts, or a 
 Judge of a County Court,or one of Her Majesty's Counsel learned 
 in the law, to preside without any commission at any Court of 
 Assize, Oyer and Terminer, and General Gaol Delivery, or at a 
 Court held under this Act in the exercise of the jurisdiction 
 now belonging to Courts of Assize, Oyer and Terminer, and 
 General Gaol Delivery, or the authority of any such Judge or 
 retired Judge of a Superior or County Court, or Counsel learned 
 in the law to hold any sitting for the hearing of causes ; and 
 any such Judge or Counsel shall after the commencement of 
 this Act, have the same authority to preside as aforesaid, or to 
 hold any sitting of the High Court for the hearing of causes in 
 the High Court respectively, which such Judge or Counsel now 
 
MISCELLANEOUS PROVISIONS. 
 
 121 
 
 ilrfl 
 
 has to preside at Courts of Assize, Oyer and Terminer, and 
 General Gaol Delivery, or to hold a sitting of the Court of 
 Chancery for the hearing of causes ; and any such Judge or 
 Counsel when presiding as aforesaid with or without a com- 
 mission, or when holdmg any sitting as aforesaid, shall be 
 deemed to constitute a Court. 
 
 See Imp. Act of 1873, s. 93; C. S. IT. C, c. 11, bs. 2-6 ; 29 & 30 Vic, c. 39 ; 
 K. S. 0. c. 39, SB. 27, 28 ; o. 40, ss. 23-27 ; c. 41, bs. 1-10. 
 
 "Commissions." See sec. 22 and notes. 
 
 86. Where a Judge of one of the Superior Courts resigns, 
 or is transferred to another of the said Courts after the passing 
 of this Act, or where after the commencement of this Act a 
 Judge of the Supreme Court resigns his oflBce, and any case 
 which has been fully heard by such Judge, either alone or 
 jointly with other Judges, stands for judgment, he may give 
 judgment therein as if he was still a Judge of the same Court, 
 and any such judgment shall be of the same force and validity 
 as if he were still such Judge, provided that such judgment of 
 the Judge be delivered within six weeks after his said resigna- 
 tion or transfer. 
 
 87. Nothing in this Act, or in the Schedule thereto, affects 
 or is intended to affect, the practice or procedure in criminal 
 matters, or matters connected with Dominion Controverted 
 Elections, or proceedings ou the Crown or Revenue side of the 
 Queen's Bench or Common Pleas Divisions. {See Imp. Act of 
 1875, ss. 19, 21 ; R. Sup. C, Order 62 ; R. Sup. C, April, 1880, 
 R. 54.) 
 
 See Imp. Act of 1875, ss. 19, 21 ; R. Sup. C, 0. 62 ; R. Sup. 0., April, 1880, 
 r. 54. 
 
 As to the jurisdiction of the Court of Chancery in matters of revenue, see 
 Attorney-General v. Walker, 3 app. r. 195, 
 
 88. It shall not be necessary for any Justice of the Peace 
 heretofore or hereafter appointed, for the temporary judicial 
 district of Nipissing, to possess any property qualification 
 whatever, or to be a stated resident within the said district. 
 
 See R. S. O., c. 7, s. 7. 
 
 89. The provisions of the Prison and Asylum Inspection 
 Act, chapter 224 of the Revised Statutes, as to the inspection, 
 construction and repairing of Gaols, shall apply to Court 
 Houses, and the said provisions shall so far as applicable be 
 read as if the words Court House or Court Houses were inserted 
 after the words Gaol or Gaols in the said Act. 
 
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122 
 
 JUDICATURE ACT. 
 
 Repeal. 
 
 90. From and after the commencement of this Act there 
 shall be repealed, so far as relates to this Province: — 
 
 (1) Sections 15 and 16 of a certain Act of the Parliament 
 
 of the United Kingdom of (Jreat Britain and Ire- 
 land, passed in the fifth and sixth years of the reign 
 of His Majesty King William the Fourth, and chap- 
 tered 62 ; without prejudice to anything done or 
 suffered before the said commencement under the 
 enactments hereby repealed. 
 
 See Imp. Act, 22 & 23 Vic, c. 12, s. 2. 
 
 (2) Any enactment inconsistent with this Act. 
 
 See Imp. Act of 1875, s. 33. 
 
 (3) Section 3 of the Act respecting the Heir, Devisee and 
 
 Assignee Commission, chapter 25 of the Revised 
 Statutes, so far as relates to any Judge, who was not 
 appointed until after the 7th of March, 1879, or who 
 may be hereafter appointed. 
 
 See Joum. L. A., March 7, 1879, p. 186. 
 
 Interpretation. 
 
 91. In the construction of this Act and of the Rules, unless 
 there is anything in the subject or context repugnant thereto, 
 the several words hereinafter mentioned shall have, or include 
 the meanings following (that is to say) : 
 
 The sections referred to made proviBion whereby suitors resident in Great 
 Britain and Ireland could give evidence in the colonies by means of declarations. 
 
 " Rules of Court " shall include forms. 
 
 " Cause " shall include any action, suit, or other original 
 proceeding between a plaintiff and a defendant. 
 
 " Suit" shall include action. 
 
 " Action " shall mean a civil proceeding commenced by 
 writ, or in such other manner as may be prescribed 
 by rules of Court ; and shall not include a criminal 
 proceeding by the Crown. 
 
INTERPRETATION. 
 
 123 
 
 " Plaintiff" shall include every pernon asking any relief 
 (otherwise than by way ox oounter-daim as a defend- 
 ant) against any other person by any form of 
 proceeding, whether the same be taken by action, 
 suit, petition, motion, summons, or otherwise. 
 
 "Petitioner" shall include every person making any 
 application to the Court, either by petition, motion, 
 or summons, otherwise than as against any defendant. 
 
 " Defendant " shall include every person served with any 
 writ of summons or process, or served with notice 
 of, or entitled to attend, any proceedings. 
 
 " Party " shall include every person served with notice 
 01, or attending any proceeding, although not named 
 on the Record. 
 
 "Matter" shall include every proceeding in the Court not 
 in a cause. 
 
 " Pleading" shall include any petition or summons, and 
 shall also include the statement in writing of the 
 claim or demand of any plaintiff, and of the defence 
 of any defendant thereto, and of the reply of the 
 plaintiff to any counter-claim of a defendant. 
 
 " Judgment" shall include decree. 
 
 " Order " shall include rule. 
 
 "Oath" shall include solemn affirmation and statutory 
 declaration. 
 
 " Existing" shall mean existing at the time appointed for 
 the commencement of this Act. 
 
 See Imp. Act of 1873, b. 100. 
 
 "Proper Officer " shall, unless and until any rule to the 
 contrary is made, mean an officer to be ascertained as 
 follows: — 
 
 (a) Where any duty to be discharged under this Act 
 or the Rules is a duty which has heretofore been 
 discharged by any officer, such officer shall 
 continue to be the proper officer to discharge 
 the same, until otherwise provided by Rule ; 
 
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124 
 
 JUDICATURE ACT. 
 
 (b) Where any new duty is under this Act or the 
 Rules to be discharged, the proper officer to 
 discharge the same shall be such officer, having 
 previously discharged analogous duties, as may 
 from time to time be directfed to discharge the 
 same, in the case of an officer of the High Court 
 of Justice, not attached to any Division, by the 
 President of the High Court, and in the case of 
 an officer attached to any Division, by the Presi- 
 dent of the Division. 
 
 See Imp. Act of 1875, 0. 63. 
 
SCHEDULE. 
 
 RULES OF COURT. 
 
 [Note. When no other provision is made by the Act or these Rules, 
 the present procedure and practice remain in force. See notes to sec. 12 
 of the Act.] 
 
 ORDER I. 
 
 Form and Commencement of tion. 
 
 1. All actions which have hitherto been commenced by writ ^•'* 
 in the Superior (Courts of Common Law, and all suits which 
 have hitherto been commenced by bill or information in the 
 Court of Chancery, shall be instituted in the High Court of 
 Justice by a proceeding to be called an action. 
 
 See Eng. R. Sup. C. 1875, 0. I., r. 1. 
 
 Action means a civil proceeding commenced by writ, or in such other manner as 
 may be prescribed by rules of Court, and does not 5r..iude a criminal proceeding by 
 the Crown, Judicature Act, s. 91. 
 
 This rule applies only to (1) actions hitherto commenced by writ, and (2) all suits 
 hitherto commenced by bill or information. It does not affect, therefore, the 
 numerous applications which have hitherto been made on petition. 
 
 Information. — There is no precedent for dispensing with the sipnature of the 
 Attorney-General to an infd'-matiou. Where, in the absence from tlie Province of 
 the Attomey-(Jeneral, an iaformatitm was filed without signature, but having 
 mdorsed thereon a fiat s'gned by the Solicitor-General, it was ordered to be taken 
 off the tiles, Attorney-General v. Tlie Toronto Street Itailway. 2 Ch. Ch. R. 165. 
 Where an information had been amended by merely adding a pfrt> by the direction 
 of the Court, a motion to take the amended information off A-.e files, because not 
 signed by the Attorney-General, was refused, Attorney-CJeneral v. The Toronto 
 Street Railwaj', 2 Ch. Ch. R. 321. Since the Judicature Act, the title " Informa- 
 nsa" ^^°^^'^ "°* ^^ used, Attorney-General v. Shrewsbury Bridge Co., W. N. 
 
 Formerly, in Chancery, the plaintiff's residence had to be mentioned in the bill, 
 fi \ M ^^ *^^ defendant's had to appear. From the forms given in the appendix 
 (A) Nol, it appears that it is now necessary in commencing an action to mention 
 the resident:.-, of both parties -that of the defendant in the body of the writ, and 
 that of the ylaiuuiu in tho indorsement. 
 
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 126 
 
 0.¥. 
 B.3. 
 
 JUDICATURE ACT — RULES. 
 
 2. With respect to interpleader, the procedure and practice 
 now used by Courts of Common Law under the Interpleader 
 Act, R. S. 0., chapter 54, save as altered by any Act passed 
 during the present session of the Legislature, shall apply to 
 a'^ actions and to all the Divisions of the High Court of 
 Justice, and the application by a defendant shall be made at 
 any time after being served with a writ of summons and before 
 delivering a defence. 
 
 See Eng. E. Sup. C, O. I., r. 2. 
 
 " Any Act passed during the present session," see 44 Vic. c. 7. 
 
 For forms of interpleader orders, see Forms, Nos. 139-145. 
 
 3. The orders of the Court of Chancery numbered from 467 
 to 487, and those numbered from 638 to 650, shall apply to 
 all the divisions of the High Court of Justice. 
 
 For these orders and notes thereto, see Tart III. 
 
 4. 
 
 4. All other proceedings in and applications to the High 
 Court may, subject to these Rules, be taken and made in the 
 same manner as they would have been taken and made in any 
 Court in which any proceeding or application of the like kind 
 could have been taken or made if the Act had not been passed 
 in case a defendant is let in to defend under the 11th section 
 of the Revised Statutes respecting absconding debtors, the 
 action shall proceed as in ordinary cases under the Act, subject 
 to the provisions in other respects of the said Revised Statute. 
 
 See this section considered in note to sec. 12 of the Act {ante). 
 
 The section of the R. S. 0. re'prred to is as follows : — The special bail (w: ether 
 put in within the time limited by the writ or within such time as the Court or 
 Judge directs) shall be put in and ptrt'°cted in like manner as if the defendant had 
 been arrested on a writ of capias fo" th ; amount sworn to on obtaining the attach' 
 ment ; and after being so put in and perfected the defendant shall be let in to 
 plead, and the action shall proceed f.s in ordinary cases begun by writ of capiat. 
 
WRIT OF SUMMONS. 
 
 127 
 
 ORDER II. 
 
 Writ of Summons and Procedure, &c. 
 
 0. 
 
 1. Every ai'.tion in the High Court shall be commenced by a o. ii. 
 writ of sumi.. \ which shall be indorsed with a statement of «• *• 
 the nature of the claim made, or of the relief or remedy re- 
 quired 'n ili'^ action, and specifying the Division of the High 
 Court t : v'h da. the action is assigned. 
 
 See Eng. R. Sup. C, 0. II., r. 1 ; Eng. R. Sl-^. C, Sched. (A) ; R. S. O., o. 50, 
 88. 3, 29 d seq. ; c. 67, s. 8 et seq. ; c. 137. 
 
 It is not essential that the indorsement on the writ of summons should set. forth 
 the precise ground of complaint, nor the precise remedy or relief to which the 
 plaintiff considers himself entitled, Ord. III., r. 2. See also as to indorsements, 
 0. III., r. 1. 
 
 6. 
 
 2. Any costs occasioned by the use of any more prolix or 
 other forms of writs and of indorsements thereon, than the 
 forms hereinafter prescribed, shall be borne by the party using 
 the same unless the Court shall otherwise direct. 
 
 See Eng. R. Sup. C, 0. II., r. 2. 
 
 See as to powers of taxing oflScers, 0. L., r. 7. 
 
 7. 
 
 3. Where the service is oo be made in Ontario, the writ of 
 summons for the commencement of an action shall, except in the 
 cases in which any different fc>rm is hereinafter provided, be in 
 Form No. 1 in Appendix (A) iiere^o, with such variations as 
 circumstances may require. 
 
 See Eng. R. Sup. C, O. II., r. 3. See note to O. L., r. 1. 
 
 8. 
 
 4. Where there iS jurisdiction in any of the Superior 
 Courts to proceed with a suit on a service out of Ontario, the 
 writ of summons to be so served shall be in Form No. 
 2, in Appendix (A) hereto, with such variations as ciiviim- 
 stanees may require. Where a defendant is not a British 
 subject, and is not in liritish Dominions^ notice of the writ of 
 summons is to be served in lieu of service of the writ, and such 
 notice shall be in Form No. 3 in the same Part, witli such 
 vaiiations as circumstances may require. 
 
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 128 
 
 JUDICATURE ACT — RULES. 
 
 O. II. 
 B. 4. 
 
 ■1 < 
 
 
 See Eiig. R, Sup. C, O. II., r. 5, schd. forms 2, 3, R. S. 0., c. 60, ss. 48-53 : O. 
 O. Chy. 90-102 Eng. C. L. P. Act 1852, a. 19. 
 
 Jurisdiction.— See O. VII. and notes. 
 
 Where a defendant is not within the British Dominions, and is not a British 
 subject, the Queen does not command an appearance, but the defendant i« notified 
 of the fact that a writ has been issued, and informed that if he do >< c appear 
 judgment may be entered. Service of process upon a foreigner not a subject 
 of Her Majesty in another country may involve unpleasant questions of ; iris- 
 diction, whereas, if it were not formally served upon, but only notice of the 
 proceedings given to, such foreigner, no such consequences can arise, Beddington 
 V. Beddington, L. R. 1 P. D. 426. Where one of the defendants is a foreigner 
 resident abroad, the proper course is to take out a concurrent writ of sum- 
 mons, and to serve a notice of it upon such defendant, lb. A writ for service 
 within the jurisdiction was served on iwo of the defendants at a place out of 
 the jurisdiction. An application was muie to set aside the service on the ground 
 of this irregularity. Mr. DaU jn refused to make the order asked for, as the 
 plaintiff had not been in fauk the domicile of the defendants being within the 
 jurisdiction ; but he gave leave to issue, nunc pro tunc, a concurrent writ for ser- 
 vice out of the jurisdiction, amendment of the copies served to be made in accord- 
 ance therewith, costs to be costs in the cause, Metcalf v. Davis, 6 Pr. R. 275. 
 
 Where a writ of summons in the form prescribed by sec. 2, 0. L. P. Act, issued 
 against an American subject resident out of the jurisdiction and described as so 
 resident, was served upon him during a temporary visit to Ontario, a final judg- 
 ment in default of appearance, signed upon a special indorsement on such writ, 
 was held regular, Snow v. Cole, 7 Pr. R. 102. 
 
 Where a writ of summons, issued after the appointment of W. M. Ross as Clerk 
 of the Process was signed by his predecessor, and the name of the Court was left 
 blank in the copy served, an amendment was allowed, without costs, Stevenson v, 
 Williams, 7 Pr. R. 358. 
 
 Where leave had been given in the Chancery Division to serve notice of the 
 writ in lieu of service out of the jurisdiction, an affidavit of service in the form 
 adopted in the Common law division was held sufficient, Bustros v, Bustros, L. 
 R. 14 Ch. D. 849. 
 
 As to necessity of obtaining an order for leave to issue a writ for service out of 
 the jurisdiction, see notes to O. VII., r. 1 {d). 
 
 9. 
 
 5. Every writ of summons and every other writ shall bear 
 date on the day on which the same is issued, and shall be 
 tested in the name of the President of the High Court of 
 Justice, and shall reanire the defendant to appear thereto in 
 10 days after service, if the service is to be made in Ontario. 
 
 See Eng. R. Sup. C. 0. II., r. 8. 
 
 The addition of the latter part of this rule commencing with the words " and 
 shall require" to the English rule has r»'ndured the meaning of the wordn '"every 
 other writ'" somewhat olisciire. Either every writ (including a writ of fieri facias) 
 is to require api)earaiioe in x days, which would li« absurd, or else the words apply 
 only to such writs as by tho practice do re(|uire appearance in 8 days, and are, 
 therefore, of the most limited lueaninK. if, indeed, tney are wider than tlie words 
 which they follow. 
 
 Supo'Tia to appoar and xnrvlce thereof set aside with costs on the ground of an 
 irregularity in the ((.■<(<■, Lord Huntingtower v. Sherliom, 5 Ueav. 102. A writ 
 tested in »1ih name of a retired Chief Justice after his successor has been gazetted, 
 liut before his acceptance of office l)y taking the nece*ary oaths, is wrong, l)utthi8 
 is only an irregularitv which may be amended on payment of costs. Nelson r. Roy, 
 3 Pr. R. 226. The absence from tho Province of the Chief Justice, does not make 
 it iiiiproper to teste a vrrit in his name. Brett i>. Smith, 1 Pr. R. 309. 
 
 ¥ 
 
WRITS OF SUMMONS. 
 
 129 
 
 The absence of the signature of the Clerk of the Process upon a writ regularly O. II. 
 sealed and issued by the Deputy Clerk of the Crown, was held to be an irregularity, b, ft. 
 which might be amended under the A A, Jus. Act, Labadie v. Darling, 7 Pr. K. 
 355. 
 
 A writ of summons may, after its issue and before service, be amended on 
 prsecipe by substituting a new plaintiff, without an order, and on such amend- 
 ment there is ,io necessity for resealing, nor need it appear on the copy served that 
 any amendment has been made, Wurthington v. Boulton, 6 Pr. R. 68. 
 
 10. 
 
 6. The Court or a Judge may, at any stage of the proceedings, 
 aUow the plaintiff to amend the writ of summons, in such 
 manner and on such terms, as may seem just. 
 
 See Eng. R. Sup. C. Feb., 1876, r. 6. 
 
 Form of Prsecipe to amend. Forms, No. 75. 
 
 Form of Order to amend, iTorms, No. 119. 
 
 After a delivery of a statement of claim amendme.it of the indorsement on the 
 writ is unnecessary. Large x>. Large, W. N. (1877) 198. 
 
 A writ may be amended before the order is actually d^a^vn up upon production 
 of the brief in the case endorsed by Counsel, and marked by the Registrar's initials. 
 Mathiaa v. Mathias, W. N. (187G), 214. 
 
 A writ of summons may after its issue and before service, be amended on pros- 
 cipe by substituting a new plaintiff, without an order, and on such amendment 
 there is no necessity for resealing, nor need it appear in the copy served thac any 
 amendment has been made. If the writ is speciaHy indorsed for interest the 
 notice required by Common Law Procedu-.i Act, sec. 1.5, may claim such interest 
 without shewing the date from which it was calculated, Worthingtou v. Boulton, 6 
 P. R. 68. 
 
 And see notes to 0. XL, r. 5; and notes to O. IV., r. 1 {I). 
 
 ORDER III. 
 
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 > 
 
 Indoisements OF Claim, &c. 
 
 11. 
 
 1. In the indorsement required by Order 2, Rule 1, it shall o. iii. 
 not be essential to set forth the precise ground of complaint, *• *• 
 or the precise remedy or relief to which the plaintiff" considers 
 himself entitled. The plaintiff may by leave of the Court or 
 Judge amend such indorsement so as to extend it to any other 
 cause of action or any additional remedy or relief. 
 
 See Eng. R. Sup. C, 0. III., r. 2. 
 
 The indorsement must be on the copy left with the officer of the Court, 0. III., 
 r. 16. 
 
 A plaintiff should indorse his writ with a claim for injunction or receiver when 
 the obtaining of either is a substantial object of his action, Colebourne v. Colebourne, 
 L. R. 1 Ch. I). 690. In a creditor's action for the administration of an intestate's 
 
 9 
 
^11 
 
 130 
 
 JUDICATURE ACT. 
 
 O. III. real and personal estate the writ must be indorsed with a claim by plaintiff "on 
 
 B. 1. behalf of himself and all other creditors," re Royle, Fryer v. Royle, L. R. 5 Ch. 
 
 D. 540. As to practice in Ontario, however, in administration suits, see G. 0. 
 Chy. Nos. G38-6.50 (post) which are expressly included in the new practice. An 
 indorsement will be a pleading if followed by a notice given bj' the plaintiff that 
 the claim is that which appears by indorsement on the writ, and may be demurred 
 to, Robertson v. Howard, 26 W. R. 683. 
 
 Tlie various kinds of indorsements must be observed. There is (1) A statement 
 of the nature of the claim made, or of the relief or remedy required, in the action, 
 0. II., r. 1 ; O. III., r. 1; app. (A.), part II. ; (2) Address of plaintiff when he 
 sues in person, or of his solicitor when the writ is issued by a solicitor, O. III., 
 rr. '6, 9 ; ('<<) Special indorsement in certain cases, O. III., r. 4 ; (4) Amount upon 
 paym( nt of which proceedings will be stayed. This is (mly in cases of claims for 
 debts )r liquidated demands. O. III., r. 5 ; app. A, part II., sec. II.; (.5) Actions 
 of ace )unt are provided for by O. ill., r. 6 ; (C) Mortgfige cases are provided for 
 by O. III., r. 7 ; (7) If plaintiff sues or defendant is sued in a representative capa- 
 city, see 0. III., r. 3. 
 
 2. The indorsement of claim may be to the effect of such of 
 the forms in Part II. of Appendix (A) hereto as shall be appli- 
 cable to the case, or if none be found applicable then of such 
 ether similarly concise form as the nature of the case may 
 require. 
 
 See Eng. R. Sup. C, O. III., r. 3. 
 
 13. 
 
 3. If he plaintiff sues in a representative capacity, or if the 
 defendam . iny of the defendants is sued in a representative 
 capacity, the indorsement shall shew, in manner appearing by 
 the statement in Appendix (A) hereto, Part Ii., sec. V., or by 
 any other statement to the like effect, in what capacity the 
 plaintiff or defendant sues or is sued. 
 
 See Eng. R. Sup. C, O. Hi., r. 4. 
 
 Exaviplej.— The pla'ntiff's claim is as executor of C. D., deceased, for, etc. The 
 plaintiff's claim is against the defendant as heir-at-law of A. B. for, etc. 
 
 14. 
 
 4. In all actions where the plaintiff seeks merely to recover 
 a debt or liquidated demand in money payable by tne defend- 
 ant, with or without interest, —arising upon a contract, express 
 or implied, as, for instance, on a bill of exchange, promissory 
 note, clieque, or other simple contract debt, or on a bond or 
 contract under seal for payment of a liquidated amount of 
 money, or on a statute where the sum sought to be recovered 
 is a fixed sum of money or in the nature of a debt, or on a 
 
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 agreeme 
 1877, wl 
 further 
 to be pa 
 
 In 
 "The 
 
INDORSEMENTS. 
 
 131 
 
 guaranty, whether under seal or not, where the claim against **• "'• 
 the principal is in respect of such debt or liquidated demand, ** *" 
 bill, cheque, or note or on a trust, — the writ of summons may be 
 specially indorsed with the particulars of the amount sought 
 to be I'ecovered, after giving credit for any payment or set-off. 
 
 See Eng. R. Sup. C, O. III., r. 6. 
 
 This order differs somewhat from R. S. O. c. 50, s. 19. (1) The R. S. O. was 
 limited to "all cases where the defendant resides within the jurisdiction of the 
 Court." (2) The words " or on a trust " were not in the R. S. O. (3) The R. S. O. 
 provided that when the writ was so endorsed, the endorsement should " be con- 
 sidered as particulars of demand ; and no further or other particulars need be 
 delivered, unless ordered by the Court or a Judge." 
 
 Where the writ is specially indorsed, the plaintiff, in case of non-appearance, 
 may sign final judgment, O. IX. r. 4. If not specially indorsed, and if the claim is 
 for a debt or a liquidated demand, no statement of claim need afterwards be delivered, 
 but the plaintiff may file an affidavit of service of the summons, or of notice in lieu 
 of service, as the case may be, and file and serve a statement of the particulars of 
 his claim, and may, after the expiration of eight days, enter final iudgment, O. IX. 
 r. 6. If the writ be specially indorsed and the defendant appears, the defendant 
 may be called on to shew cause why judgment should not be entered against him, 
 0. X. r. 1 ; and that, even though the defendant may be a corporation, Shelford v. 
 The South and East Coast, Ry. Co., L. R. 4 Ex. D. 317. 
 
 Sufficient Indorsemfnts. — In Walker v. Hicks, L. R. 3 Q. B. D. 8, the writ was 
 indorsed as follows : — "The plaintiffs' claim is £399 9s. 7d,, the defendant's share 
 or contribution to the payment of certain bills of exchange and promissory notei 
 on which he and the plaintiffs were jointly liable, and which bills and notes have 
 been taken up by the plaintiffs." Cockburn, C. J., in holding this insufficient, 
 said: "Tlie object of the special indorsement is this: on the one hand, it is to 
 have a very prompt and summary effect in favor of the plaintiff, by entitling him 
 to apply to sign final judgment under O. XIV. (Ont. 0. X.) and, on the other 
 hand it ii« intended that the defendant should have an opportunity of avoiding 
 such furt'aer proceedings by payment of the debt. I think a party who is placed 
 in the predicament of being liable to have a judgment signed against him sum- 
 nuirily, is entitled t.> have sufficient particulars to enable him to satisfy his mind 
 whether he ought to Diiy or resist. On looking to the forms of indorsements in the 
 schedule 'o the rules, I find that in the examples of special indorsements under 
 0. in. r. 6 (Ont. O. HI. r. 4), in actions on promissory notes and bills of exchange, 
 full particulars are given of the amount and date of the instrunrent and the parties 
 thereto. If such particulars must be given when the actior. is on the bill itself, 
 a fortiori, I think they must be given when the c';um is, as here, in respect of a 
 share or contribution to the payment of bills and notes paid by the plaintiffs. It 
 seems to me that a party is entitled, before summary jiroceedings are taken against 
 him, to know sj^cifically what the claim is against him. 
 
 In Smith v. Wilson, L. R. 4 0. P. D. 392 ; S. C. in appeal, L. R. 5 C. P. D. 25, 
 the indorsement following was held sufficient : "The plaintiff's claim is £49..5s. 8d. 
 The following are the particulars." It then went on, " To goods," with dates and 
 amounts, and after giving credit for certain payments, it stated the balance due to 
 be £4'.« ."is. 8d. : -Held a sufficient indorsement under O. III. r. (i (Ont. O. III. r. 
 4) to entitle the plaintiff to sign judgment under O. XIV. r. 1 (Ont. O. X. r. 1), 
 and that the indorsement was not vitiated by the insertion therein of a banker's 
 draft, which hail been given as payment but was dishonoured, and in respect of 
 which no claim was made. 
 
 In Parpaite Freres v. Dickinson, 38 L. T. N. S. 178, the following was held 
 insufficient : "The plaintiffs' claim is £2,323 48. 7d., being seventy-five per cent, 
 of the invoice price of goods supplied by the plaintiffs to the defendant, under an 
 agreement entered into between the plaintiffs and the defendant in or about March, 
 1877, whereby the plaintiffs agreed to consign the said goods to the defendant for 
 turther consignment by the defendant to Australia, the said seventy-five per cent, 
 to be paid by the defendant in cash on receipt of the goods." 
 
 , In Aston V. Hurwitz, 41 L. T. N. S. 521, the following was hexd sufficient:— 
 The plaintiff's claim is for £116 Os. lOd. being the balance due <o him from the 
 
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 132 
 
 JUDICATURE ACT. 
 
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 O. III. defendant for moneys paid at the said defendant's request and on his behalf, for the 
 
 a, 4^ purchase of certain stocks and shares between the 3rd June, 1879, and the 31st 
 
 August, 1879, an account of which has been rendered, and^exceeds three folios." In 
 giving judgment Bramwell, L. J., said: — "I thinlc this special indorsement is 
 iiufficient. I think that 0. Til., r. 6, (Ont. O, III., r. 4) was not intended to alter 
 the form of special indorsements which was given by the Common Law Procedure 
 Act, 1852, and which enabled the plaintiff in default of appearance to sign judg- 
 ment under sec. 27. In my opinion the same form of special indorsement will do 
 now as before the Judicature Acts, and this indorsement would clearly have been 
 enough under the Common Law Procedure Act. According to the indorsement an 
 account has been received by the defendant, and I think that particulars enough 
 have been furnished to give jurisdiction under 0. XIV. (Ont. 0. X.)." 
 
 Interest. — In an action on a merchant's account, where the special indorsement 
 claimed interest : — Held, that defendant's non-appearance was an admission of the 
 f charge for interest. Standing et nl. v. Torrance et al., 4 \V. C. L. J. 235. A claim 
 
 for interest on a demand for specific goods and chattels sold, indorsed on a writ of 
 summons, is good, and cannot be disputed after judgment signed in default of 
 appearance, but if the claim for interest is indorsed to gain an improper advantage, 
 and judgment be signed for more than a plaintiff is entitled to, such judgment will 
 be set aside, Mearns v. Grand Trunk Railway Company, 6 U. C. L. J. 62. The 
 indorsement for interest on a specially indorsed writ, is in general a matter of claim 
 only. If it be correct judgment goes rightly for it, without any inquiry, where 
 the plaintiff claims, and the defendant does not dispute it, McKenzie v. Harris, 
 -0 U. C. L. J. 213. An indorsement for the balance of an account and for protest 
 charges on an unaccepted draft :— Held, right as to the interest, but not as to the 
 protest charges, Sinclair v. Chi.sholm, 5 Pr. R. 270. If the writ is specially 
 indorsed for interest, the notice required by C. L. P. Act, sec. 15, (R. S. O. s. 19,) 
 may claim such interest without snewing the date from which it is to be calcul- 
 ated, Worthington v. Boulton, 6 Pr. R. 68. 
 
 K. S. O., c. 50, s. 267, is as follows :— On the trial of any issue, or any assess* 
 ment of damages, upon any debt or sum certain, payable by virtue of a written 
 instrument at a certain time, the jury may allow interest to the plaintiff from the 
 time when such debt or sum became payable. 
 
 Sub-s. 2. If payable otherwise than by virtue of a written instrument at a certain 
 time, the jury may allow interest from the time when a demand of payment is 
 made in writing, informing the debtor that interest will be claimed from the date 
 of such demand. 
 
 Notwithstanding this Statute, however, interest has been allowed in many 
 cases where the notice has not been given. In Spence i'. Hector, 24 U. C. 
 R. 277, it was said that " interest is in practice much more frequently allowed 
 by our juries than English authority would seem to warrant," and in Michie 
 y. Reynolds, lb. 303, where a sheriff had retained proceeds of an execution 
 in his hands and the Court was itself dealing with the question, Draper, C. J., 
 said : — " Lastly, if the question of interest had been left to the jury, we have no 
 doubt they would have r'iven it to the plaintiffs, considering that the sheriff had 
 retained the proceeds ot the executions so long. It has been the practice for a very 
 long time to leave to the discretion of the jury to give interest where the payment 
 of a just debt has been withheld, and we can find no good reason to depart from 
 that practice on the present occasion. " 
 
 In luglis V. The Wellington Hotel Co., 29 U. C. C. P. 387, however, where in- 
 terest was claimed on a sum of $9G, admitted to be due before action commenced, 
 for extra work and materials furnished by the plaintiff, but not under a written 
 contract, and no demand of interest was proved :— Held, that the claim for interest 
 could not be allowed. 
 
 Tu has been held that the above rule does not apply to any caso where it is 
 optional with the jury to give interest as they may be advised, according to the 
 justi V of the case, Rodway v. Lucas, 10 Ex. 672. 
 
 A. and B., having become sureties for C, the receiver in a suit in Chan- 
 cery, and who was to account yearly, were sued for C.'s default, on a specially 
 indorsed writ, and judgment signed for £490 168. lOd.:— Held, that the claim 
 was not such that a judgment upon a specially indorsed writ could be signed, 
 Buel V. Whitney, 11 U. C. , C. P. 240. A writ of summons may be specially indorsed 
 as for a balance due on a bill of exchange, even though some of the items forming 
 part of the amount are unliquidated, there being a balance due on the bill itself, 
 Bank of Montreal v. Harrison, 4 Pr. i.". 331. 
 
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 Trusl 
 
INDORSEMENTS. 
 
 183 
 
 An indorsement on a writ of summons as follows :— " 1861, Dec. 31st. To balance •• '■ '• 
 of account due ard owing by the within named defendants at this date for work and R. 4. 
 labour done and performed by the plaintiff for the defendants, and at their request, 
 and for moneys paid by the plaintiff for the defendants at their like request, 
 $5,950.47," with tlie usual claim for interest from that date, was held a sufficient 
 indorsement to entitle the plaintiff to sign judgment on default of appearance ; and 
 judgment was set aside only on payment '^f all costs, and giving security for the debt, 
 Smart v. The Niagara and Detroit Rivers Railway Co., 12 U. C. C. P. 404. "The 
 plaintiff claims $1,300 for debt, and $20 for costs, and if the amount thereof be paid 
 to the plaintiffs or their attorney, within eighfr days from the service thereof, fur- 
 ther proceedings will be stayed." The following are the particulars of the jjlaintiffs' 
 claim : "18G5, June 10th, balance of account due from defendant to plaintiffs for 
 goods sold and delivered and money advanced and lent, the items whereof exceeding 
 in all five folios, $1,129.24." The plaintiffs also claimed interest, etc. :— Held, suf- 
 ficient (on the authority of Hoodsall v, Baxter, 1 E. B. & E. 844 ; and Fromant v. 
 Ashley, 1 E. & B. 723); McDonald v. Burton, 2 U. C. L. J. N. S. 190. 
 
 A special indorsement as follows : — " To amount of machines $500" with several 
 specified credits for cash received was held sufficient, Northern Railway Co. v. 
 Lister, 4 Pr. R. 120. 
 
 The plaintiff sued the defendant on a foreign judgment for .?240, and 
 specially indorsed this amount upon the writ of summons. He obtained 
 judgment in default of appearance : — Held, that the foreign judgment was 
 not a liquidated or ascertained amount within the meaning of R. S. O., c. 50, sec. 
 153, and that the plaintiff was entitled to Superior Court cojts, Davidson v. 
 Cameron, 8 Pr. R. 61. In Craig v. Dillon, 17 U. C. L. J. 121, the defendant agreed 
 to pay to the plaintiff $200 as liquidated damages if certain loose stones and a par- 
 tially constructed stone fence were not removed from the plaintiff's land at the 
 time mentioned in the agreement. Held : — Affirming the judgment of the County 
 Court that the sum mentioned was not a penalty, and that the plaintiff was en- 
 titled to receive the sum as liquidated damages on default. That the claim is for a 
 liquidated demand must a^ipear on the face of the indorsement, Rogers v. Hunt, 
 10, Ex. 474. 
 
 15. 
 
 5. Where the plaintiff's claim is for a debt or liquidated de- 
 mand only, the indorsement, beside stating the nature of the 
 claim, shall state the amount claimed for debt, or in respect of 
 such demand, and for costs, respectively, and shall further state 
 that upon paym^ nt thereof within 8 days after service, or, in 
 case of a writ not for service within the jurisdi, ion, within 
 the time allowed for appearance, further proceedings will be 
 stayed. Such statement may be in the form in Appendix (A) 
 hereto, Part II., sec. II. The defendant may, notwithstanding 
 such payment, have the costs taxed, and if more than one-sixth 
 shall be disallowed, the plaintiff's solicitor shall pay the costs 
 of taxation. 
 
 See Eng. R. Sup. C. O. III., r. 7. 
 
 The corresponding sec. 18 of R. S. 0. , c. 50, only applied to actions of debt. 
 The present rule includes actions for " liquidated demands." 
 
 If a larger sum than is due be indorsed, proceedings will be stayed, upon pay- 
 ment of the real debt, with costs of the writ only, Elliston v. Robinson, 2 Dowl. 
 I, ?^^ ' Y"""K '"• Crompton, 2 D. & L. 557. The indorsements must state clearly 
 what IS claimed for debt and what for costs, Truslove v. Whitechurch, 8 Dowl. P. 
 C.,837. 
 
 "The plaintiff claims £85 Ss. (id. for debt, and £ for costs," is irregular, 
 
 Truslove f. Whitechurch, 8 Dowl. P. C. 837. 
 
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134 
 
 JUDICATURE ACT. 
 
 O. III. If interest be claimed, the amount must be stated, or the period from which it 
 
 B, a. is reckoned, Bardell v. Miller, 7 C. B. 763. 
 
 As to the indorsement under this rule supplementing any defect in a special 
 indorsement, see Worthington v, Boulton, 6 Pr. R, 68. 
 
 Within 8 Days, — Bothjfirst and last^days are inclusive, rules of Trin. Term, 
 1856, No. 166. 
 
 If the last day falls on a Sunday or other day on which the offices are closed, it 
 is sufficient if the act ib done on the day on which the offices are next open, 0. 
 LII., r. 3. 
 
 16. 
 
 6. In all cases of ordinary account, as, for instance, in the 
 case of a partnership, or executorship, or ordinary trust ac- 
 count, where the plaintiff desires to have an account taken in 
 the first instance, the writ of summons shall be indorsed with a 
 claim that si^ch account be taken. This rule does not apply 
 to proceedings under Order I., Rule 3. 
 
 See Eng. R. Sup. C.,fO. III., r. 8 ; G. O. Chy. 467 et seq. ; 638 et teq. 
 
 In default of appearance to a writ of summons indorsed under rule 6, and after 
 appearance, unless the defendant, by affidavit or otherwise, satiefj' the Court or a 
 Ju^ge that there is some preliminary question to be tried, an order for the account 
 claimed, with all directions now usual in the Court of Chancery in similar cases, 
 will be forthwith made, O. XI., r. 1 ; and as to practice thereon, see O. XI., rr. 
 1, 2, 3. 
 
 Form of indorsement No. 9 (c). 
 
 17. 
 
 7. Where the claim is for the foreclosure of a mortgage or 
 the sale of mortgaged property, and the plaintiff desires an 
 order against a defendant for the immediate delivery of pos- 
 session, or for immediate payment, the writ must, in addition 
 to the ordinary notice, be indorsed with a further notice to the 
 effect of such of the forms in Appendix (A) hereto, Part II., 
 section VI., as are applicable to the case. 
 
 See G. O. Chy. 647. 
 
 For practice in mortgage cases see Part III., post. 
 
 
 II' 
 
 18. 
 
 8. Where a plaintiff sues by a solicitor, the writ of summons 
 or notice in lieu of service of a writ of summons, shall be 
 indorsed with the solicitor's name or firm and place of business, 
 where writs, notices, petitions, orders, warrants and other 
 documents, proceedings, and written commtinications may be 
 left for him. 
 
INDORSEMENTS. 
 
 135 
 
 (a) Where any such solicitor is only agent of another •* '"• 
 solicitor, there shall be added to his name or firm and place 
 of business the name or firm and place of business oJ the 
 principal solicitor. 
 
 See Eng. R. Sup. 0. 1 ; R. S. 0., c. 50, s. 16 ; G. O. Chy. 40, 41. 
 
 Where a proceeding is commenced by petition or in any other manner than by 
 writ it is conceived that the old practice aa to indorsements will continue, see 
 0. I. r. 4. The practice in Chancery was prescribed by G. 0. Chy. 40 and 41, 
 which are as follows :— (40) Upon every writ sued out, and upon every bill, 
 demurrer, answer or other pleading or proceeding, there shall be indorsed the name 
 or firm and place of business of the solicitor and solicitors by whom such writ has 
 been sued out, or such pleading or other proceeding has been filed ; and when such 
 solicitors are agents only, then there shall be further indorsed thereon the name of 
 firm and place of business of the principal solicitor. (41) Where the name and place 
 of business of a solicitor have been inciorseil upon any pleading or proceeding file il, 
 it shall not be necessary to indorse such place of business on any pleading or pro- 
 ceeding in the same cause or matter subsequently filed or subsequently served on 
 any person who was served with the former proceeding. 
 
 In Redman i'. Brownscombe, 6 Pr. R. 83, it was held that the indorsement of 
 the name and jjlace of business of the solicitor conducting proceedings is by Con. 
 Orders 40 and 41 , required on the first writ sued out, or proceeding Jiled in a suit 
 or matter, but is not essential on the first papers served. 
 
 Changing Solicitor. — The practice in Chancery and at Law differed widely as 
 to the manner of procedure in case a party to a suit desired to change his solicitor. 
 In Chancery under G. O. Chy. No. 49, an order could be obtained at any time upon 
 prrecipe, and that without regard to the payment or non-payment of the solicitor's 
 costs. At Law, on the other hand, an order had to be obtained, which was 'jranted 
 only on condition of payment of the first solicitor's costs ; see an exception to this, 
 however, in case of a aissolution of a firm of solicitors and a change consequent 
 thereon, Slater v, Stoddard, 6 Pr. R. 299. If the point involved is one of principle 
 then sec. 17 of the Act (sub-s. 10) provides that generally in all matters not here- 
 inbefore particularly mentioned, in which there is any conflict or variance between 
 the rules of Equity and the rules of Common Law with reference to the same 
 matter, the rules of Equity shall prevail ; and if it be one of practice then the 
 practice which is the more preferable will prevail, see Wedderburn v. Pickering, 
 L. R. 13 Ch. D. 769 ; Newbiggin-by-the-Sea v. Armstrong, L. R. 13 Ch. D. 310 ; 
 and see notes to sec. 12 of the Act. The point came up in Grant v. Holland, Ross 
 V. Grant, L. R. 3, C. P. D. 180, in which it was decided that the rule of Equity 
 must prevail. Huddlestone, B., said : — "There is then a distinct conflict between 
 the rule of Law and the rule of Equity in this respect, and the general scope of the 
 Judicature Acts, 1873 and 1875, is that Law shall cede to Equity." And Lindley, 
 J., said :— " The question then is reduced to the construction of sub-s. 11 of s. 25 
 of the Judicature Act, 1873 (Ont. Act sec. 17, sub-s. 10), which provides that in all 
 matters in which there is any conflict or variance between the rules of Equity and 
 the rules of Common Law with reference to the same matter, the rules of Equity 
 shall prevail. I do not know why the practice with regard to the changing of 
 solicitors should not be a ' rule of llquity. The general scope of the Judicature 
 Act is that the should be one uniform administration of justice in the High Court 
 of Justice, as was laid down in the Court of Appeal in Bustros v. White (L. R. 1 
 li ^* ^' '^"^^' Unless there be something to preclude it the rules of Equity are in 
 all case to prevail. " 
 
 Joint Solicitor with a Common Agent.— In Waldon v. Thompson, L. R. 6 En. 7, 
 Mr. W. Barber asked that the Record and Writ Clerk might be ordered to file a 
 }. !*y *^^° plaintiflfs with an indo sement stating it to be filed by a firm of London 
 solicitors, as agents for two country solicitors, not in partnership, joint solicitors 
 for the plaintiffs. He stated that there was a difference of opinion between the 
 Kecord and Writ Clerks as to the piactice, and cited in support of his application 
 Braithwaite's Practice (page 9), and Forms to Daniell's Chancery Practice (No. 6a). 
 Lord Romilly, M. R,, made the order. 
 
 ^ // there be no indorsement. — Service of supboena to appear and answer, without 
 indorsement, may be set aside on speedy application, Johnson ••. Barnes, 1 D. k 
 om. 129 ; omission of the address for service does not necess • make the writ 
 
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 O. III. void, but the Court will ata^ proceHs until the rule ia complied with, Price v. Webb, 
 
 j^f^ 2 Ha. 511. Attachment diacnarged with coats, indoraement of aubpoena on which 
 
 it iasued being defective, Barnea v. Twedell, 1 C. P. Coop. 440. As to waiver by 
 
 appearing, Carvick v Young, Jac. 524. 
 
 Irregularity in the indoraement on a pleading of the name and place of buainess 
 of the aolioitor filing it ia waived by demanding and receiving a copy, Bennett v. 
 O'Meara, 2 Ch. Ch. 07. 
 
 19. 
 
 9. Where a pl8.!?it.iff sues in person, thery shall be indorsed 
 upon the writ of s ^ un?ons, or notice in lieu of service of a writ 
 of summons, his piacs of residence and occupation. 
 
 (a) If his place of residence shall be more than 2 miles from 
 the oflfice out of which the first process in the cause shall be 
 issued, there shall be indorsed also another proper place, to 
 be called hi"? address for service, which shall not be more 
 than 2 miles from such office, where writs, notices, petitions, 
 orders, warrants and other documents, proceedings, and written 
 communications not requiring personal service may be left for 
 him. 
 
 (6) If the writ or notice is not so indorsed,or if such address 
 or place be more than 2 miles from the office aforesaid, then 
 the opposite party shall be at liberty to proceed by posting 
 up in such office all notices, petitions, orders, warrants and 
 other documents, proceedings and written communications re- 
 quiring service. 
 
 See C. L. P. A.; R. S. O., c. 50, a. 17 ; Rulea of Practice, Trin. Term, 1866, 
 No. 138; G. 0. Ohy. 44. 
 
 80. 
 
 10. In any action whatever the plaintiff wherever resident 
 may issue a writ of summons out of the proper office in Toronto, 
 or in any County. 
 
 See Eng. R. Sup. C, 0. V., r. 1 ; R, S. O., c. 60, s. 10; G, O. Chy., No. 77. 
 
 By the G. L. P. A., R. S. 0. c. 50, a. 10, the plaintiff could, in all caaea in which 
 the cause ia tranaitory, sue out the writ of summons in Toronto, or from the office 
 of any Deputy Clerk of the CroMra. By sec. 11, where the cauae of action is transi- 
 tory, the writ had to be aued out f Jom the office within the proper county. Now, 
 however, by O. XXXI. r. 1, there is to be no local venue for the trial of any action, 
 except ejectment. 
 
 In Chancery, a plaintiff could file hia bill of complaint with the Clerk of Records 
 and Writs, in Toronto, or with any Deputy Registrar in the country, G. O. Chy. 
 
 77. 
 
 21. 
 
 11. Writs of summons for the commencement of actions 
 in the Queen's Bench and Common Pleas Divisions, shall 
 
'■• !B M f.''!'( 
 
 WRITS OF SUMMONS. 
 
 be issued by the same officers as now issue like writs for •• 
 the Courts of Queen's Bench and Common Pleas respectively, ** 
 and shall be issued alternately in the Queen's Bench and 
 Common Pleas Divisions, as the case may be, as here- 
 tofore in the said Courts. Writs for the commencement of 
 actions in the Chancery Division shall be issued by the proper 
 officers hitherto attached to the Court of Chancery. Writs 
 issued by the Clerk of Records and Writs, or by a Deputy 
 Registrar or Deputy Clerk of the Crown and Pleas need not be 
 sealed or signed by the Clerk of the Process. 
 
 See B. S. 0., c. 39, s. 44 ; c. 50, b. 3, et seq. ; G. O. Chy., Noa. 34-39 ; Eng. B. 
 Sup. C, O. v., r. 4. 
 
 Writs of summons at Common Law are now issued in Toronto by the Clerk of 
 the Process, and in the country by the Deputy Clerks of the Crown, C. L. P. A. ; 
 B. S. 0. c. 50, ss. 5, 6. 
 
 In Chancery, bills are filed with, and writs issued by, the Clerk of Becords and 
 Writs in Toronto, and by the Deputy Begistrars in the country, G. O. Chy. 23, 34, 
 
 77. 
 
 12. In all cases there shall be a statement on the face of the 
 writ of summons naming the office in which the defendants' 
 appearance is to be entered. 
 
 See Eng. B. Sup. C, O. V., rr. 2, 3. 
 
 In Chancery, every office copy of a bill served on a defendant had to be indorsed 
 in the form, or to the effect following : — " Your answer is to be filed at the office of 
 the Clerk of Becords and Writs, at Osgoode Hall, in the city of Toronto (or, when 
 
 the bill M filed in an outer county, at the office of the Deputy Registrar at ), 
 
 G. 0. Chy. 86 ; sched. C. 
 
 And see C. L. P. A., B. S. 0. c. 50, sched. A, form 1. 
 
 nr 
 
 III. 
 11. 
 
 ■ r 
 
 23. 
 
 13. Writs of summons shall be prepared by the plaintiff or 
 his Solicitor, and may be written or printed, or partly written 
 and partly printed. 
 
 See Eng. B. Sup. C, O. V., r. 6. 
 
 InC 
 printed, 
 
 Act, pr ^_, .. ^ 
 
 foolscap size, O. LI. r. 2. 
 
 24. 
 
 14. Every writ of summons shall be signed and sealed by 
 the officer issuing the same, and shall thereupon be deemed to 
 be issued. 
 
 See Eng. B. Sup. 0. 0. V., r. 6. 
 
 I 
 
 
138 
 
 JUDICATURE ACT. 
 
 0> III A writ of summons may, after the issue and before service, be amended on 
 
 B. 14« pnecipe by substituting a new plaintiff, without an order, and on such amendment 
 
 there is no necessity for re-sealing, Worthington v. Boulton, 6 Pr. B. 68. 
 
 When a writ of summons, issued after the appointment of W. M. Ross as Clerk 
 of the Process, was signed by his predecessor, and the name of the Court was left 
 blank in the copy served, an amendment was allowed without costs, Stevenson v. 
 Williams, 7 Pr. II. 358. The absence of the signature of the Clerk of the Process 
 upon a writ regularly sealed and issued by the Deputy-Clerk of the Crown, is an 
 irregularity which may be amended under the A. J. Act, Labadie v. Darling, 7 Pr. 
 R. 355. 
 
 « 25. 
 
 15. The plaintiff or his Solicitor may, on presenting any 
 writ of summons for sealing, leave with the officer a copy, 
 written or printed, or pai tly written and partly printed, of 
 such writ and of all the indorsements thereon, and such copy 
 shall be signed by or for the Solicitor leaving the same, or by 
 the plaintiff himself, if he sues in person. 
 
 See Eng. Sup. C. O. V., r. 17. 
 
 Upon an indictment for perjury charged as having been committed on the trial 
 of an action, the existence of the action is sufficiently proved by the production, 
 by the officer of the Court, of the coy writ tiled under this rule, the Queen v. 
 Scott, L. R, 2 Q. B. D. 415. 
 
 26. 
 
 16. The proper officer shall make an entry of every writ of 
 summons in a book to be called the Process Book, which is to be 
 kept in the manner in which process books have heretofore been 
 kept by the Clerks of the Crown and Pleas ; and the action shall 
 be distinguished by a number in the manner in which actions 
 are now distinguished in such last mentioned books ; and 
 in case of any further proceeding in the action, an entry 
 thereof shall be made in another book to be called the Pro- 
 cedure Book, which is to be kept in the manner in which Pro- 
 cedure Books have heretofore been kept by the said Clerks. 
 
 See Eng. R. Sup. C, 0. V., r. 8. 
 
 STT. 
 
 17. The plaintiff in any action may, at the time of, or at 
 any time during 12 months after, the issuing of the original 
 writ of summons, issue one or more concurrent writ or writs, 
 each concurrent writ to bear teste of the same day as the orig- 
 inal writ, and to be marked by the officer issuing the same 
 with the word "concurrent," in the margin, and the date of is- 
 suing the concurrent writ: Provided always, that such concur- 
 rent writ or writs shall only be in force for the period during 
 which the original writ in such action shall be in force. 
 
DISCLOSURE BY SOLICITORS, ETC. 
 
 139 
 
 ;' j 
 
 See R. Eng. Sup. C. O. VI., r. 1 ; R. S. 0., c. 60, a. 26. ' 
 
 Months are calendar months, O. LII., r. 1. In computing the six months, the 
 long vacation is included, Mullin v, Bonjor, 5 Ir. C. L. R. 476 ; and see 0. Lll. 
 r. 8. 
 
 A concurrent writ cannot be issued, except within the time limited from the 
 dftte of the original writ, Coles v. Sherwood, II Ex. 482. 
 
 Where one of the defendants is a foreigner resident abroad the proper course is to 
 take out a concurrent writ of summons and to serve a notice of it upon such defen- 
 dant, Beddington v. Beddington, L. R. 1 P. D. 426. 
 
 38. 
 
 18. A writ for service within the jurisdiction may be issued 
 and marked as a concurrent writ with one for service, or 
 whereof notice in lieu of service is to be given, out of the juris- 
 diction ; and a writ for service, or whereof notice in lieu of ser- 
 vice is to be given out of the ju^'isdiction, may be issued and 
 marked as a concurrent writ Wxth one for service within the 
 jurisdiction. 
 
 Leave granted to issue nunc pro tunc a concurrent writ for service out of the jur- 
 isdiction, to make good a service on a defendant whose domicile was within the 
 jurisdiction, but who had been served out of it with a writ for service within. Met- 
 calf V. Davis, 6 Pr. R. 275 ; see notes to previous rules of this order. 
 
 III. 
 ,19. 
 
 ORDER IV. 
 Disclosure by Solicitors and Plaintiffs. 
 
 m. 
 
 1. Every solicitor whose name shall be signed to or indorsed ®* "^* 
 on any writ of summons shall, on demand in writing made by 
 or on behalf of any defendant who has been served therewith 
 or has appeared thereto, declare forthwith whether such writ 
 has been issued by him or with his authority or privity. 
 
 (a) If he answers in the affirmative, then he shall also, in case 
 the Court or a Judge so directs, disclose in writing, within a time 
 to be limited by such Court or Judge, the profession or occupa- 
 tion, and place of abode of the plaintiff, on pain of being guilty 
 of a contempt of the Court from which such writ appears to 
 have issued. 
 
 _ '* The Court or a Judge" — Under this and many of the subsequent orders power 
 IB given to "the Court or a Judge" to adjudicate upon many matters of trifling 
 importance, and the question at once arises as to the jurisdiction in these matters 
 of the Master in Chambers. Under O. XLIX. r. 6, the Master in Chambers 
 ' shall have the power, authority and jurisdiction heretofore in like cases possessed 
 in the Superior Courts . respectively by the Clerk of the Crown and Pleas of / 
 
 CD 
 
 ! 
 
'1 i 
 
 1 
 
 '1 
 
 ?E 
 
 
 't4 
 
 140! JUDICATURE ACT. 
 
 0« IV. the Court of Queen's Bench and by the Referee in Chambers of the Court of 
 
 If, f . Chancery ;" and by rule 6 (a) of the same order, " The said officer shall not have 
 
 authority or jurisdiction ... in respect of any other matter which by these orders 
 is expressly required to be done by a Judge of the High Court." O. LXI. r. 1 
 provides that :— " A Judge in the preceding orders means a Judge of the Supreme 
 Court, or a Judge having the authority for the time being of a Judge of the High 
 Court, unless there is something in the context indicating a different meaning." 
 
 Sec. 62 of tht) Act provides that, subject to any rules of Court, the Clerks of the 
 Crown and Plea), the Referee in Chambera, etc., shall respectively have the same 
 judicial and other powers in respect of business in each and every of the Divisions 
 of the High Court as they have now in respect of business of the Court to whiih 
 they are attached. 
 
 No similar question arises in the English practice, for there, ^j O. LIV. r. 2, 
 the Master has all the jurisdiction of a Judge in Chambers with certain exceptions. 
 
 Some of the cases in our Courts may throw some light upon the point. R. S. 0. 
 c. 49, 8. 9, provided that where in any m suit it appears that a deceased person who 
 was interested in the matters in question has no legal personal representative, the 
 Court or a Judge may either proceed in the absence, etc., or may appoint some 
 
 Eerson. etc. This section was little more than a copy of <;he 6. O. Chy. 56, which 
 ad been in existence since 1853. The jurisdiction of the Referee in Chambers was 
 provided for by G. O. 560 (promulgated 23rd February, 1871), which empowers him 
 to transact such business as "is now" transacted by a Judge in Chambers, with cer- 
 tain exceptions. An application was made in March, 1879, for the appointment of a 
 person to represent an estate. The Referee made the order, holding that ' ' the term 
 Judge must be held to include Referee in cases coming within his limited 
 jurisdiction." On appeal, Spragge, C, held that "the Statute merely extended a 
 jurisdiction alreadypossessed oy the Referee, and, therefore, that this was a proper 
 case for him to decide," Collver v. Swayzie, 8 Pr. R. 42. By G. O. Chy. 640 (pro- 
 mulgated 10th January, 1879, and therefore subsequent to the order conferring 
 jurisdiction upon the Referee), applications may be made to the presiding Judge in 
 Chambers for an order for partition. Proudfoot, Y. C, held that an application 
 under this order was proper^ - made to a Judge in Chambers, and not to the Referee, 
 re Amott & Chatterton v. Chatterton, 8 Pr. R. 39. By 36 Vic. c. 8, s. 36, "the 
 Court or a Judge in Chambers " may call on a judgment debtor to shew cause why 
 his equitable interests should not be sold under execution. Blake, V. C, directed 
 the matter to be heard before a Judge in Chambers, Wark v. Moulton, 7 Pr. R. 
 144. By 36 Vic. c. 8, s. 35, " the Court or a Judge in Chambers " may call upon a 
 debtor and a {grantee of his lands to shew cause why the lands should not be sold to 
 
 Say an execuuon creditor's debt. Spragge, 0., held that the Referee had no juris- 
 iction to make any order under this section, Queen v. Smith, 7 Pr. R. 429. 
 
 R. S. O. c. 36, B. 18, provides that certain issues shall be tried as theretofore 
 unless " the Court . . . or a Judge thereof .... directs, etc." 
 
 Mr. Dalton derived his jurisdiction under 33 Vic. c. 11, s. 6. This section empowers 
 the Judges to make rules for empowering the Clerk of the Crown to transact 
 any such business, etc., as is now transacted, etc., by a Judge sitting at Chambers. 
 In pursuance of this Statute, the Judges, by the rules of Hilary Term, 1870 
 (29 U C. R. 623), ordered that the Clerk of the Crovim and Pleas of the Court 
 of Queen's Bench should be, and he thereby was, empowered to transact all 
 such business, etc., as was then transacted, etc., by a Judge sitting at Chambers, 
 subject to certain exceptions. The Statute, 37 Vic. c. 7, s. 47, provided that "The 
 authority conferred upon the Judges therein mentioned by the fifth section of the 
 Act respecting proceedings in Judges' Chambers, passed in the thirty-third year of 
 Her Majesty's reign, shall, subject to the exception therein contained, extend to 
 empowering the Clerk of the Crown and Fleas of the Court of Queen's Bench to do 
 any such thing, and to transact any such business, and to exercise any such 
 authority and jurisdiction as are now, or may be hereafter, done, transacted or 
 exercised by a Judge of either of the Superior Courts of Law sitting at Chambers, 
 and the words 'Judge's order' and 'order of a Jud^e,' and other like expressions in 
 any Act of the Legislature of Ontario, when referring to an order of a Judge of a 
 Superior Court of Law, shall include an order made by the said Clerk under the 
 authority of the said section, unless there is something in the context indicating a 
 different meaning." Held : — That Mr. Dalton had power to make an order under 
 the section first quoted, Bennett v. Tregent, 25 U. C. C. P. 443. 
 
 In Jackson v. Randall, 24 U. C. C. P. 87, the Jurisdiction of a Judge at Cham- 
 bers in a matter where the Court had jurisdiction at common law was discussed, 
 
DISCLOSURE BY SOLICITORS. ETC. 
 
 141 
 
 Hagarty, C. J., there said :— " Then can the Judge in Chambers do what this Court O. IV. 
 clearly can do? The case of Smeeton v. Collier, 1 Ex. 467, is a direct authority. R. i. 
 The head no' ^ sums up the result : — ' Where a statute, in general terms and without 
 any special Lmitation, either express or to be inferred from its terms, gives any 
 ix)wer to one of the Superior Courts, that power may be exercised by a Judge 
 at Chambers as the delegate of the Court.' The judgment of Parke, B., is very 
 clear on that point. It is, of course, to be considered that here there is no express 
 legislative autnority to either the Court or a Judge to set aside the attachment, and 
 the right has to rest on the general pewer of the Court over its process. The Judge 
 in this case must be considered as sitting in Chambers as ' the deputy of the Court 
 disposing of applications which, but for the press of business, would be disposed of by 
 the Court itself.' See also the cat>es in the note to Kilkenny, etc., R. W. Co. v. Feil- 
 don, 6 Ex. 83. According to Sweetman v. Collier, Pollock, C. B., says :— ' Where 
 the Legislature simply gives a power to the Court, it is to be taken that the Court 
 receives all the ordinarjr powers necessary for that purpose ; and it is intended that 
 the Judge should exercise these powers. No distinction exists between powers con- 
 ferred bv statute and those existing at con mon law, unless a distinction is to be 
 gathered from the terms of the statute. Alderson, B. , says : — ' I take it to be 
 clear, that, where the Legislature gives the Court any powers in general terms, and 
 without any express limitation, it is the «<une as if these powers were given by the 
 common law.' The common law power of the Court over its own process can 
 therefore be exercised by a Judge in Chambers. It was never doubted, we think, 
 that, at all events as to mesne process, the power to set aside could be exercised in 
 Chambers." 
 
 In re Allen, 31 U. C. R. 458, the point was also discussed, and the authorities 
 collected. The more important of them are here given:— "Ch. Arch. Prac. (11th 
 ed.) 1586, it is said, in some cases, instead of applying to the Court, an applicalion 
 ma^ be made to a Judge at Chambers, and in some cases the latter has exclusive 
 
 jurisdiction When a Statute expressly or implicitly directs that the 
 
 application shall be made only to the Court, a Judge has no power to interfere, and 
 vice vertd, but when a Statute in general terms, and without any special limitation 
 either expressed or to be inferred from its terms, gives any power to one of the 
 Superior Courts, that power may be exercised by a Judge at Chambers. Under 
 the Act, 14 2 V ic. . c. 110, it is provided that if it be shewn to the satisfaction of 
 of a Judge of one of the Superior Courts that there is probable cause for believing 
 that the defendant is about to quit England unless forthwith apprehended, and 
 that he is indebted to the plaintiff, etc., the Judge shall direct the defendant to be 
 held to bail for such sum as he shall think fit, not exceeding the amount of debt or 
 damage. This corresponds with our own Con. Stat. U. 0. c. 24, sec. 5. In such a case 
 the Judge alone can make the order for arrest, and not the Court, Harvey v. O'Meara, 
 7 Dowl. 735; Bentley v. Berry. 7 M. & W. 146 ; Bamett v. (jraw, 1 Dowl. N. S. 
 774. By the sixth section of the Imperial Act, 1 & 2 Vic, c. 110, the Court may 
 set aside the arrest, when ordered by a Judge, on insufficient grounds. This agrees 
 with our C. L. P. Act, sec. 31. But it is said in Ch. Arch Prac. (11th ed. ) 782, that 
 before the English Act, when arrests were made, as in trover, under a Judge's order, 
 the Court would review the proceedings of the Judge, Clarke v. Cawthome, 7 T. R. 
 321 ; Wolley v. Thomas, 7 T. R. 550. Under the same Imperial Statute a Judge 
 alone has power to make an order charging stock in the public funds with the 
 payment ol the judgment debt; and Lord Abinger, C. B., said:— 'The Statute 
 expressly gives to the Judge, and not to the Court, the power of making orders of 
 this nature. If he thinks fit to make an order, the Court has authority to set it 
 aside, but we have no original jurisdiction to make such an order,' Parke, B., 
 speaks in the like way, Brown v. Bamford, 9 M. & W. 42 ; see also Fowler v. 
 ChurchiU, 11 M. & W. 67 ; Morris v. Manesty, 9 Jur. ia34." 
 
 There is much in the present Act and rules upon wBich to base arguments pro 
 and con. 
 
 !• Form No. 11 is a form of a notice of motion returnable before the Master in 
 Chambers. Some of the orders which are given as examples of those which may 
 be so applied for are : (a) for final judgment under O. X., which authorizes an appli- 
 
 io° *o *he Court or • Judge : (6) for particulars as to partners under O. XII., 
 r. 12, which authorizes an apphcation to a Judge ; (c) to dismiss for want of pro- 
 •ecution under 0. XXV., which Mithorixes an application to the Court or a Judge. 
 
 2. The forms Nob. 110, 111, 112, 114, 119. 124, 129, 131, 132, 133, "34, and 136, 
 ^j oraen made in pursuance of rules which rive authority to " tne Court or a 
 Judge" andar«yet by th« fonui aaaumed to b» within the jurisdiction of the 
 

 142 
 
 JUDICATURE ACT. 
 
 O. IV. Master in Chambera, as shewn by the words which precede the style of cause 
 
 B. 1, " {nanu of the Judge or Matter)." 
 
 3. The forms Nos. 113 and 120 are of orders made in pursuance of rules which 
 give authority to " a Judge " ; and form No. 126 of an order made in pursuance of 
 a rule which directs that the application " shall be to a Judge," and are assumed 
 by the forms to be within the jurisdiction of the Master in Chambers. 
 
 4. The forms Nos. 115, 116, 117 are of orders made in pursuance of Order X., in 
 which the words '* Court or a Judge " are used in some places and ' ' a Judge " in 
 others, and are assumed by the forms to be within the jurisdiction of the Master 
 in Chambers. 
 
 5. The form No. 130 is of an order made in pursuance of section 47 of the Act, 
 which provides that such orders may be made " by the Court or by any Divisional 
 Court or Judge before whom such cause or matter may be pending"; and is 
 assumed by the form to be within the jurisdiction of the Master in Chambers. 
 
 6. Form No. 125 is of an order to produce, which under O. XXVII., r. 4, may 
 be issued on praecipe ; and form No. 138 is of an order for examination of a judg- 
 ment debtor, which is rendered unnecessary by O. XLI., r. 1, and yet are assumed 
 by the forms to be orders which should be made by a Judge or the Master in 
 dhambers. 
 
 Consider also the use of the words " Court or a Judge " in the following orders : 
 — O. XVI., r. 6 ; O. XIX., r. 1 (6) ; O. XXV., rr. 11 & 12 ; O. XXVII., r. 2 ; 0. 
 XXXI., rr. 17 & 18 ; of the words "to the Court or a Judge in Chambeis" in 0. 
 XXII., r. 7 ; of the words " to a Judge " in 0. XII., r. 12 ; O. XXVII., rr. 15 
 & 16, and compare r. 17 ; and of the words " Judge in Chambers " in O. XXXIV., 
 r. 1. 
 
 (6) If such sc]:3itor shall declare that the writ was not issued 
 by him or with his authority or privity, all proceedings upon 
 the same shall be stayed, and no further proceedings shall be 
 taken thereupon without leave of the Court or a Judge. 
 
 " Court or a Judge." See notes to O. IV. r. 1 (a). 
 
 There existed a difference between the practice in Chancery and at Law in cases 
 where a solicitor assumed to act for a plaintiff without authority. In Chancery it 
 was held that the plaintiff was liable to the defendant for his costs, and that the 
 plaintiff must recover them if he can from the solicitor. In Palmer v. Walesb^, L. 
 K. 3 Ch. App. 732, 735, Wood L. J. said : " The very circumstance of a solicitor 
 using the name of a person as plaintiff involves the person whose name is so used in 
 liability to the defendants since they are not bound to look to the authority of the 
 solicitor." At law, however, as was held iu Kevnolds v. Howell, L. R. 3 Q. B. 398, 
 the plaintiff could obtain an order, staying all proceedings without costs. The 
 point came up in Newbiggin-by-the-Sea Gas Co. v. Armstrong, L. R. 13 Ch. D. 310, 
 and it was held that where a solicitor has commenced an action, in the name of the 
 plaintiff without authority, the proper course is for the plaintiff to serve notice of 
 motion on the defendant, as well as on the solicitor, that the action may be dis- 
 missed, and that the solicitor may pay the costs of the plaintiff, as between solicitor 
 and client, and the costs of the defendant as between party and party. In cases 
 where no rule of practice is laid down by the new orders, and there is a variance in 
 the old practice of the Chancery and Common Law Courts, that practice is to pre- 
 vail which is considered by the Court most convenient. See notes to sec. 12 of 
 the Act 
 
 In Nurse v. Dumford, L. R. 13 Ch. D. 764, under similar circumstances on 
 motion by the defendants, to dismiss for want of prosecution, and on motion by the 
 plaintiff to have his name struck out from the record :— Held, that the solicitors to 
 the record who had purported to act for the said plaintiff were liable to pay his 
 costs of the motion, as between solicitor and client, and also to pav the costs of the 
 defendants of the action and all motions therein. It appearing that the solicitors 
 had inserted the plaintiff's name, through the fault of a deceased co-plaintiff: 
 $emble, they would have a right of proof for the costs they were orderea to pay 
 •Kainst hii estate. 
 
Tvn 
 
 DISCLOSURE BY SOLICITORS, ETC. 
 
 For cases in orr own Courts see Robe v. Reid, 1 Ch. R. (0. L.) 98; Smith v. O. IT. 
 Turnbull. 1 Pr. R. 88 ; Shaw v. Ormiston, 2 Pr. R. 152 ; Meyers v. Lake, 1 Gr. b. i. 
 305 ; Chisholm v. Sheldon, 1 Gr. 294 ; Miller v. Hill, 4 U. 0. L. J. N. S. 78 ; Fan- 
 derson v. McMahon, 12 U. C. R. 288 ; Moran v. Schermerhom, 2 Pr. R, 261 ; 
 Warely v. Poapst, 7 U. C. L. J. 294; Ellison v. Ellison, 9 U. 0. L. J. 245; Quantz 
 V. Smelser. 6 Pr. R. 126. 
 
 30. 
 
 2. Where a writ is sued out by partners in the name of their 
 firm, the plaintiffs or their solicitor, shall, on demand in writ- 
 inty by or on behalf of any defendant, declare forthwith the 
 names and places of residence of all the persons constituting 
 the firm. 
 
 143 
 
 (a) If the plaintiffs or their solicitor shall fail to comply 
 with such demand, all proceedings in the action may, upon an 
 application for that purpose, be stayed upon such terms as the 
 Court or a Judge may direct. 
 
 Under 0. XII. r. 12, any party to an action may make the demand. 
 
 (6) Where the names of the partners are so declared, the 
 action shall proceed in the same manner, and the same conse- 
 quences in all respects shall follow, as if they had been named 
 as the plaintiffs in the writ ; but all proceedings shall, never- 
 theless, continue in the name of the firm. 
 
 See Eng. R. Sup. C, O. VII. r. 2. 
 
 The various rules relating to partnership are here collected. 
 
 Service upon partners. — Where partners are sued in the name of their firm, the 
 writ shall be served either upon any one or more of the partners, or, at the princi- 
 pal place within Ontario of the business of the partnership, upon any person Lav- 
 ing at the time of service the control or management of the partnership business 
 there ; and, subject to the rules hereinafter contained, such service shall be deemed 
 good service upon the firm, O. VI. r. 8. 
 
 Appearance by partners. — Where partners are »ued in the name of their firm, they 
 shall appear individually in their own names ; but all subsequent proceedings shall, 
 nevertheless, continue in the name of the firm, O. YIII. 8. 
 
 Where anv person carrying on business in the name of a firm apparently consist- 
 ing of more than one person shall be sued in the name of the firm, he shall appear 
 in his own name ; but all subsequent proceedings shall, nevertheless, continue in 
 the name of the firm, 0. VIII. r. 9. 
 
 Partners parties to actions, — Any two or more persons claiming, 'or bein^ liable, 
 as co-partners, may sue or be sued in the name of their respective firms, if any ; 
 and any party to an action may in such case apply by summons to a Judge for a 
 statement of the names of the persons who are co-partners in any such firm to be 
 furnished in such manner, ana verified on oath or otherwise, as the Judge may 
 direct, 0. XII. r. 12. 
 
 Anv person carrying on business in the name of a firm, apparently consisting of 
 more than one person, may be sued in the name of such firm, O. XII., r. 1.3. 
 
 Jvdgment against partners. — Where a judgment is against partners in the 
 name of the firm, execution may issue in manner following : — 
 (a) Agaiait any property of the partners as such ; 
 
 ■I 
 
 I 
 
 1 
 
 tt!:l 
 
144 
 
 JUDICATURE ACT. 
 
 O. IT. (5) Against any person who has admitted on the pleadings that he is, or has 
 
 B, ji, been adjudged to be a partner ; 
 
 (c) Against an}' person who has been served, as a partner, with the writ of 
 summons, and has failed to appear. 
 If the party who has obtained judgment claims to be entitled to issue execution 
 against any other person as being a member of the firm, he may apply to the 
 Court or a .Tudge for leave so to do ; and the Court or Judge may give such leave 
 if the liability be not disputed, or if such liability be disputed, may order that the 
 liability of such person be tried and determined m any manner in which any issue 
 or question in an action may be tried and determined. O. XXXVIII. r. 8. 
 
 O. XXVII. r. 18, providing for an attachment in case of failure to complv with 
 any order for discovery, does not apply to an order made under these rules for 
 disclosure of the names and residences of partners. Pike v. Keene, 24 W. B. 322. 
 
 A judgment recovered against the two defendants, who were partners, was paid 
 by the defendant G., who thereupon issued execution against his co-defendant S., 
 on the judgment for half the amount. It appeared that the partnership accounts were 
 unsettled, and that an award had been maide in favour of S., the validity of which 
 was disputed by 6. : — Held, that under 26^ Vic, c. 45, sec. 4, the execution was 
 improperly issued ; and it was set aside, Scripture v, Gordon, 7 P. B. 164. 
 
 " Court or Judge."— See notes to 0. IV., r. 1 (a). 
 
 ORDER V. 
 Renewal of Writ. 
 
 o. V. 
 B. 1. 
 
 :4 
 
 31. 
 
 1. No original writ of summons shall be in force for more 
 than 12 months from the day of the date thereof, including the 
 day of such date ; but if any defendant therein named shall not 
 have been served therewith, the plaintiff may, before the expira- 
 tion of the 12 months, apply to a Judge for leave to serve the 
 writ after, and nut w ithstanding the lapse of, the said period. 
 
 (a) The Judge, if satisfied that resiJonable efforts have been 
 made to serve such defendant, or for other good reason, may 
 order that the service shall be good if made within 12 months 
 from the date of the order ; and so from time to time during the 
 currency of the further period allowed. 
 
 (6) The writ shall in such case be renewed by being marked 
 with the date of the day, month and year of such renewal ; such 
 renewal to be so marked by the proper officer, upon delivery to 
 him by the plaintiff or his solicitor of a memorandum in Form 
 No. 76, in Appendix E. 
 
 (c) In such case the original writ shall be available, to pre- 
 vent the operation of any statute whereby the time for the 
 
 ; • t- I 
 
WRITS OF SUMMONS. 
 
 commencement of the action is limited and for all other pur- •• ^' 
 poses, from the date of the original issue of the writ. ** ** 
 
 See Eng. R. Sup. 0., 0. VIII., r. 1 ; R. S. 0., o. 60, ss. 27-29 ; G. 0. Chy. 
 93-98. 
 
 " Months."— The word months means calendar months, O. LII., r. 1. 
 
 "Before the expiration of the 12 months,"— The practice in Chancery has been to 
 eCFect the service, notwithstanding the lapse of the time limited for service and 
 then to apply for an order allowing the service, G. O. Chy. 96—98. When a writ 
 of summons has been amended, the 12 months must be reckoned from the date of 
 the issue and not from the date of amendment, re Jones, Eyre v. Cox, 46 L. J. 
 Chy. 316. By O. LII., r. 8, the time of the long vacation shall not be recovered 
 in the computation of the times appointed or allowed by these rules for filing, 
 amending or delivering any pleading, or in the times allowed for other purposes 
 for which the same is not reckoned by the practice of the Courts consolidated by 
 the Act, or any or either of them, or for the like proceedings substituted by the 
 Act, or these rules ; unless otherwise directed by a Court or a .Tudge. 
 
 Acting under this rule and notwithstanding the lapse of the 12 months, an 
 order was made permitting service, re Jones, Eyre v. Cox, 46 L. J. Chy. 316. But 
 the time cannot oe extended under this order wnere the plaintiff's claim would, in 
 the absence of such renewal, be barred by the Statute of Limitations, Doyle v. 
 Kaufman, L. R. 3 Q. B. D. 340. 
 
 0. LII., r. 4, makes provision for the last day for doing any act falling upon a 
 Sunday. It provides that where the time for doing any act or taking any proceed- 
 ing expires on a Sunday, or other day on which the offices are closed, and by reason 
 thereof such act or proceeding cannot be done or taken on that day, such act or 
 proceeding shaU, so far as regards the time of doing or taking the same, be held to 
 be duly done or taken if done or taken on the day on which the offices shall next 
 be open. 
 
 Lots of TFn't.— Where an original writ of summons has been lost the Court has 
 no power to allow a renewal of it by ordering a verified copy to be sealed, Davies 
 V. Garland, L. R. 1 Q. B. D. 250. 
 
 Lis Pendens. — It is presumed that the right to issue and register a certificate of lit 
 pendens still exists. Can then a plaintiff, by wantonly issuing a writ and registering 
 such a certificate, create a cloud upon any defendant's title which will last during the 
 currency of the writ and the additional three months within which, after appear- 
 ance, he is at liberty to file his statement of claim ? Under the former practice in 
 Changery a bill had to be served within twelve weeks (except in special cases). If 
 a bill remained after that period unserved an application might be made to dismiss 
 the bill for want of prosecution, see Somerville v. Kerr, 2 Ch. Ch. R. 154 ; Moore 
 V. Roseburg, 2 Ch. Ch. R. 406 ; Poulton v. Lee, 7 Pr. R. 415 ; see also re Western 
 Insurance Company, 6 P. R. 86. If the suit is purely illusory an application 
 might indeed be made to take the bill off the files, but the material necessary for the 
 motion was the same as on an application at law to strike out a defendant's plea, 
 a direct admission of the fact by the party himself, Jameson v. Lang, 7 Pr. R. 404, 
 where Blake, V.-C, said: — "When such an application comes before the Referee 
 in Chambers and there is no doubt of its being a fictitious suit, a convenient course 
 to pursue would be to enlarg^e the motion before a Judge, who might then direct an 
 early hearing." Perhaps this suggestion may be followed in a purely illusory suit, 
 but where there is some colour of claim it does not apply at all events under the 
 words of the V.-C. See also as to staying groundless actions, Castro v. Murray, 
 L. R. 10 Ex. 213 ; Dawkins v. Saxe Weimar, L. R. 1 Q. B. D. 499. Another 
 course may probably be adopted. The defendant, it is presumed, might enter an 
 appearance even although not served (see Poulton v. Lee, 7 Pr. R. 416), in which 
 case the plaintiff would be bound under O. XVII. r. 1 (a) to deliver his statement 
 of defence within three months from the appearance. 
 
 " Reasonable efforts have been made to serve such defendant, or for other good reason. " 
 Under the G. 0. Chy. 96, it was necessary to shew " that due diligence has been 
 used in effecting senrice." 
 
 10 
 
 149 
 
 i I 
 
146 
 
 o. ▼. 
 
 B.9. 
 
 JUDICATURE ACT. 
 
 32. 
 
 2. The production of a writ of summons purporting to have 
 been renewed in manner aforesaid shall be sufficient prm«/aci« 
 evidence for all purposes, of the writ having been so renewed, 
 and of the commencement of the action as of the date of the 
 issue of the writ in manner provided as aforesaid. 
 
 See Eng. R. Sup. C, O. VIII., r. 2 ; R. S. 0., c. 60, s. 28 ; Eng. C. L. P. Act 
 of 1852, 8. 13. 
 
 O. TI. 
 B. 1. 
 
 ORDER VI. 
 
 Service of Writ of Summons. 
 
 1. — Mode of Service. 
 
 33. 
 
 1. No service of writ shall be required where the defendant 
 by his solicitor accepts service, and undertakes to enter an 
 appearance. 
 
 The corresponding Chancery Order, G. O. , Chy. 47, was as follows :— Where an 
 acceptance of service of any bill order or other proceeding, and an undertaking to 
 answer or appear thereto, are given by'a solicitor, such acceptance and undertaking 
 are to be equivalent to personal service upon the party for whom the same are 
 given, within the meanmg of the order requiring personal service, and an affidavit 
 of personal service is in such case dispensed with. 
 
 Under the present rule service is not required where the defendant by his solici- 
 tor accepts service, and undertakes to enter an appearance. The inference is that 
 where (1) a solicitor ac^ without authority or (2) where he gives an acceptance 
 merely, service is required. The next rule then proceeds to provide for cases 
 " where service is required." Under the former Chancery practice, if both an ac- 
 ceptance and an undertaking were given, the bill might, in default of answer or 
 demurrer, be voted pro confesso, and where an acceptance merely was given, a 
 motion might be made in Chambers upon notice for an order pro confesso, Ross v. 
 Hayes, 6 6r. 277. Under the present rules the practice is to apply for an attach- 
 ment against the 83licitor under 0. VIII., r. 11 ; or to sign judgment on default of 
 appearance, 0. IX., r. 3. 
 
 " Undertakes. " — It is not said that the undertaking is necessarily to be in writing. 
 In Starratt v. Manning, 3 U. G. L. J. 10, it was held that an attorney by accept- 
 ing service undertakes to appear ; O. VIII., r. 11, however, |]authorizes an attach- 
 ment only in case of a written undertaking, and 0. IX., r. '3, speaks of filing the 
 undertaking. 
 
 The practice at law was to apply for an attachment as against the attorney. 
 Under the present practice the attorney is liable to an attachment for breach of a 
 written undertaking to appear, 0. VIII., r. 11 ; but if, as is extremely probable, 
 jud:pnent may be signed upon filing the acceptance and undertaking witn an affi- 
 davit verifying it, under 0. IX., r. 3, it is probable that an attachment will not 
 be frequently applied for. 
 
 Acceptance of Service. — Admissions and acceptances of the service of a bill, order, 
 notice of motion, or other paper, upon the opposite solicitor, need not be Terified 
 by affidavit, G-. O. Chy. 48. There is no similar provision in the common law 
 practice, and an affidavit of verification would be necessarjr.. ^ xhaps, as the 
 Chancery practice is in this respect the more reasonable, it will b« adopted. See 
 notes to sec. 12 of the Act, and also O. XXVIII., r. 4, where the principle i> 
 recognized ; but see O. IX., r. 3, where upon filing an acceptcmce of service and an 
 undertaking to appear, it is required that an affidavit i^ouLl be filed verifying the 
 undertaking. 
 
T 1 
 
 Act 
 
 S 
 
 an ftni- 
 will not 
 
 ill, order. 
 ) verifiM 
 ,mon la' 
 ,8, as *e 
 ited. S« 
 incipl« tt 
 ice and Ml 
 ifyingtw 
 
 SERVICE OF WRITS. 
 
 Bepudiation of Aeceptance.~Wh9n a solicitor promptly repudiated his accept- O. 
 ance of a paper served after hours, which he admitted without knowing it" nature, R, 
 the service was held bad, MoTavish v. Sympson, 7 P. B. 146; and see 'Wiit.'>" v. 
 Way, 8 P. R. 328. 
 
 34. 
 
 2. Where service is required the writ shall, wherever it is 
 practicable.be served by the same person and in the same manrt v 
 as service is now made ; and where personal service is req lired, 
 if it be mad:^ to appear to the Court or Judge on affidavit that 
 the plaintiff is from any cause unable to effect prompt personal 
 service, the Court or Judge may make such order for substituted 
 or other service, or for the substitution of notice for service, as 
 may seem just. 
 
 The power possessed by the Court of Chancery as to proceeding in the absence 
 of personal service was large. R. S. O. c. 40, as. 93, 94. provided as follows :_— An 
 absent defendant or respondent may be served at any place out of the jurisdiction 
 of the Court, with a copy of any bill or proceeding, without an application being 
 previously made to the Court for the allowance of such service, and the service shall 
 08 allowed on proof to the satisfaction of the Court that the same was duly made. 
 Sec. 94. —Where a defendant or respondent in any suit or matter is absent from the 
 Province, or cannot be found therein to be served, the Court may authorize pro- 
 ceedings to be taken against him according to the practice of the Court in the case 
 of a defendant whose residence is unknown, or in any other manner that may be 
 provided or ordered, if the Court, under the circumstances of the case, deems such 
 mode of proceeding couducive to the ends of justice. 
 
 The G. 0. Chy. 100 and 102 were as follows :— 
 
 100. In case it appears to the Court by sufficient evidence that a defendant is 
 absent, or cannot be found, after due diligence, to be served with an office copy of 
 the bill of complaint, the Court may order the defendant to answer or demur within 
 a time to be named in the order, and may direct a copy of the order, together with 
 a notice to the effect set forth in schedule C, hereunder written, to be published in 
 such manner as the Court thinks fit ; and, in case the defendant does not answer or 
 demur within the time limited by such order, the Court may order the bill to be 
 taken pro confesso in the manner hereinaiter provided. 
 
 102. The Court may provide for or order service in an^ other manner that the 
 Court, under the circumstances of the case, deems conducive to the ends of justice. 
 
 The notice referred to as in schedule C was as follows : — "C. D., take notice 
 that if you do not answer or demur to the bill, pursuant to the above order, the 
 plaintin may obtain an order to take the bill as confessed against you, and the 
 Court may grant such relief as he may be entitled to on his own shewing ; and you 
 will not receive any further notice of the future proceedings in the cause." 
 
 The power at law to proceed in the absence of personal service was more limited 
 than in Chancery. R. 8. O. c. 50, s. 20, provided that "if it appears to such Court 
 or Judge that reasonable efforts have been made to effect personal service, and 
 either that the writ has come to the knowledge of the defendant, or that he wilfully 
 evades service of the same, and has not appeared thereto, such Court or Judge may 
 by or^r grant leave to the plaintiff to proceed as if per -nal service had been 
 effected, subject to such conditions as to the Court or Judge s^em fit." 
 
 The present rule is very comprehensive, and permits substituted service in cases 
 where the Court of Chancery would not nave heretofore dispensed with personal 
 service. The cases l>elow, decided prior to the Judicature Act, must therefore be 
 taken as shewing: the former practice, but neverthelesa useful and necessary to a 
 correct appreciation of the new system. 
 
 Personal service means, serving the defendant with a copy of the writ, and 
 shewing him the original, if he dedre it, Goggs v. Lord Huntingtower, 1 D. & L. 
 
 147 
 
 '■ n 
 
 ] I 
 
k'i.^^ 
 
 148 
 
 JUDICATTRE ACT. 
 
 0« VI. 599. The copy of the writ must he left with and not merely shewn to the defendant, 
 
 B. 9. Worley v. Glover, 2 Str. 877 ; and even though defendant refuse to take the copy, 
 
 if the person serving it bring it away with him, the service will be defective, Pigeon 
 
 V. Bruce, 8 Taunt. 410 ; Erwin v. Powley, 2 U. C. R. 270. 
 
 The original writ need not be shewn, unless the defendant at or within a reason- 
 able time after service, make a demand to see it, Thomas v. Fearce, 2 B. & C. 761 ; 
 Petit V. Ambrose, 6 M. & S. 274 ; a quarter of an hour held to be reasonable time, 
 Wesley v. Jones, 5 Moore, 162. 
 
 The principle on which orders for substituted service are granted is, that there 
 is reasonable ground to believe that the service will come to the party's ow-". know- 
 ledge, Hope V. Hope, 19 Beav. 237 ; 4 D. M. & G. 328 ; Hart v. Lever, 5 Ves. 147 ; 
 Heald v. Hay, 9 W. R. 369 ; Dicker v. Clarke, 11 W. R. 636. 
 
 Thus, when a bill was filed to stay an action at law, and the plaintiff atla<v was 
 out of the jurisdiction, the plaintiff in equity was entitled to an order for service on 
 the attorney in the action at law, Sergison v. Beavan, 22 L. J, Ch. 287 ; Hammond 
 V, Walker, 3 Jur. N. S. 686 ; Hurst v. Hurst, 1 D. & Sm. 694 : Howkins v. Bennett, 
 1 Giff. 215. And substituted service may be allowed, thougn the defendant is not 
 absconding, but is residing permanently abroad, Griffiths v. Cowper, 2D. F. & 
 J. 208. 
 
 The application shorid be made ex parte, Danford v. Cameron, 8 Ha. 329 ; and 
 a plaintiff moving upon notice may be ordered to pay costs, Reed v. Barton, 28 L. 
 T. 36 ; and it should be shewn that every effort has been made to effect personal 
 service, Hope v, Carnegie, L. R. 1 Eq. 126 ; Frith v. Bush, 11 W. R. 611. 
 
 Where an agent is proposed to be served, it must be shewn that he is agent tor 
 the particular purposes of the suit. Bones v. Angier, 18 Jur. 1,050 ; or at any rate 
 for a purpose closely connected with the suit, Passmore v. Nicholh, 1 Gr. 130 ; 
 Cupples V. Yorston, 2 Ch. Ch. R. 31 ; AUan v. Pyper, 5 U. C. L. J. 118. His ad- 
 mission that he is agent is not sufficient ; the lact must be proved, Legge v. 
 Winstanley, 3 Gr. 106. 
 
 The solicitor in a former suit is not the client's agent for the purpose of substi- 
 tuted service in a fresh suit, though relating to the same matter. Hurst v. Hurst, 
 1 D. & Sm, 694 ; nor in a cross suit, Waterton v. Croft, 5 Sim. 502. 
 
 A solicitor who had written for a copy of the bill held not sufficiently an agent 
 for the purpose, Asiatic Banking Co. v. Anderson, 13 L. T. N. S. 272. That a 
 person is in communication with the absent party is not sufficient. Watts v. Hughes, 
 8 W. R. 292. 
 
 An affidavit in support of an application for substitutional service on an ab- 
 sconding defendant, or to advertise him, should shew what exertions have been 
 made to find him, Mumey v. Knapp, 1 Ch. Ch. R. 26 ; Irving v. Strait, 76. 185. 
 Service by publication on parties out of the jurisdiction, who cannot be found, will 
 
 not be ordered on the affidavit of the plaintiff alone, v. Corcoran, 3 Ch. Ch. 
 
 R. 398. 
 
 As to substitutional service, advertising, or service by mailing, see Stimson v. 
 Stimsun, 6 Gr. 379 ; Lepsey v. Cruise, 1 Ch. Ch. R. 2 ; McMurrich v. Hogan, lb. 
 307; Pearson v. Campbell, 2 Ch. Ch. R. 25; McDonald v. McMillan, lb. 282; 
 Cameron v. Baker, lb. 281 ; Gordon v. Hanna, 6 P. R. 266 ; Wolverhampton and 
 Straffordshire Banking Co. v. Bond, W. N. (1881). 
 
 The provision for " substitution of notice for service " in this rule does not apply 
 to an ordinary case of an absconding defendant within the jurisdiction. Cook v. 
 Dey, L. R. 2. Ch. D. 218. 
 
 Prompt tervice.— An order was made to serve a defendant who could not, after 
 some attempts, be found at his residence or place of business, to be served by 
 leavintr >^ copy of the writ at both places, ana sending a copy through the post 
 addressed to the defendant at both places. Capes v. Brewer, W. N. (1876), 193 ; 
 see also Hamilton v. Davies, W. N. (1880) 82. Defendant was in India ; an 
 order was made for substituted service upon his solicitors and his managing clerk, 
 W. N. (1875) 238. The defendant to a foreclosure action had absconded ; his wife 
 and family did not know his whereabouts, and the plaintiff had been unable to 
 ■erve him. A motion was made for a receiver, and for directions as to the 
 mode of effecting substituted service, referring to Cook v. Dey (2 Ch. D. 218) 
 and Crane v. JuUion {lb. 220). The Vice-Gbancellor :— You may take an order 
 for a receiver. You had better serve your writ by leaving a copy of it with the 
 wife ^of the defendant, and you ^ust also advertise in the Timet and London 
 
i !| 
 
 SERVICE OF WRITS. 
 
 149 
 
 not, after 
 jerved by 
 
 the post 
 876). 193; 
 ndia: an 
 ing clerk, 
 ; hit wife 
 unable to 
 Bg to the 
 
 , D. 218) 
 
 _, an order 
 
 t with the 
 
 London 
 
 Oazette. The advertisements may be so framed as to give notice that in default of 0« VI* 
 appearance the plaintiff will move for judgment at such time and place as may be K. 9. 
 proper, Bank of Whitehaven v. Thompson, W. N. (1877), p. 45. 
 
 Where effectual personal service could not be made on the persons named as 
 defendants, the Court will not order substituted service, Sloman v. The Governor 
 and Government of Xew Zealand, L. B. 1 C. P. D. 563. A colonial government is 
 not a corporation and cannot be effectually served. 
 
 The plaintiff being unable to serve one of the defendants obtained an order for 
 substitutional service, and the action proceeded to judgment against all the defen- 
 dants. The defendant against whom the order had been made applied to be let in 
 to defend, on the ground that he had a defence on the merits, and that he had 
 never had any notice of the action while pending. Held that as an order for sub- 
 stituted service had been properly made, and service effected uiider it, the judg- 
 ment was regular, and that the defendant could not, ex dehito jtutitia, claim to 
 be let in to defend ; but that the Court, in exercise of its discretion, could allow 
 him to do so if it were shewn that he had no knowledge of the proceedings and had 
 a defence on the merits and that as the giving leave was discretionary, the Court 
 could impose terms. Watt v. Barnett, L. R. 3 Q. B. D. 18.S, 363. 
 
 Service of the writ in an action to recover possession of leasehold houses against 
 an absconding defendant, who had given the tenants notice to pay their rents to 
 him, directed to be effected b^ leaving a copy of the writ at each of the houses and 
 by advertising. Crane v. Jullion, L. K. 2 Gh. D. 220. 
 
 See also Rafael v. Ougley, 34 L. T. N. S. 124 ; Whitely v. Honeywell, 35 L. T. 
 N. S. 517, 24 W. R. 851 ; Hartley v. Dilke, 35 L. T. N. S. 706, 6. 
 
 Form of Order for substituted service, see Forms No. ill. 
 
 Form of Advertisement. — The advertisement should be so framed as to give notice 
 that in default of appearance the plaintiff will move for judgment at such time and 
 
 Slace as may be proper. Bank of Whitehaven v. Thompson, W.N. (1877) 45. The 
 'orm of Order given in Chitty's Forms (11th ed. p. 80) is as follows : — 
 
 A. B. ^ Upon reading the affidavit of 
 I service of this order and a coi 
 
 V. 
 
 D. 
 
 I do order that 
 of the writ, by leaving a copy of each 
 
 1 service oi tnis order and a copy ot tne wnt, by leaving a copy ot eacn 
 Hand by sending a copy of each by prepaid post letter addressed to the 
 0. D. ) defendant) at the residence (or place of business) of the defendant, 
 viz (and by inserting advertisements of the commencement of the 
 
 action and of this order in the "London Gazette " and the "Times," and that the 
 defendant is required to appear herein, otherwise the action will proceed against 
 him) shall be good and sufficient service of the writ herein. 
 Dated 
 
 " The tarn* perton." — The sheriffs have been the only persons (if any particular 
 class is intended) who have heretofore been recognized as the proper persons to 
 serve writs. That it is not intended however to require service "wherever it is 
 practicable " to be made by sheriffs may be argued from the form of affidavit of 
 service (No. 32) which is dravvu for a solicitor and not for a sheriff's officer. 
 
 " The same manner." — In Chancery it has not heretofore been necessary to serve 
 the bill personally, service upon a grov.Ti-up person at the residence of the defendant 
 was sufficient. Edgson v. Edgson 3 D. M. G. 629. Elliot v. Beard, 2 Ch. Ch. 
 R. 80. In case of such service, however, the bill could not be noted pro confesso; 
 a notice of motion for an order had to be served personally on the defendant, G. O. 
 Chy. 107. In ejectment in case of vacant possessio, service may be by posting a 
 
 2. — On particular Defendants. 
 
 35. 
 
 3. A married woman shall be served in the same manner as 
 a party to a suit or matter not under any disability is now 
 served; and the like proceedings may be had on such service 
 and with the like effect, as if the married woman were &feme 
 sole. 
 
 1 
 
 4 
 
 Q 
 

 , ■ . V 
 .1 
 
 ■ 
 
 ■'■■ . .( 
 
 s. 
 
 -i ' 
 
 
 
 S 
 
 ■ . ' ! 
 
 
 
 
 V i 
 
 
 '■ ' 1 
 
 
 mm 
 
 H^^'^i 
 
 
 It 
 
 150 
 
 O. VI. 
 B.S. 
 
 , 
 
 JUDICATUEE ACT. 
 
 See G. O. Chy. 613; R. S. O., c. 125, s. 20. 
 
 In Chancery, prior to G. O. 613, it was necessary to obtain an order for a mar- 
 ried woman to answer separately from her husband. But by that order it was 
 provided that "Hereafter it shall not be necessary to serve a married woman 
 with an order requiring her to answer separately. A married woman shall be 
 served as a party to a suit or matter, not under any disability is now served, and 
 the like proceedings may be had on such service and with the like effect, as if the 
 married woman were a feme sole," 
 
 See O. XII., r. 9, as to cases in which married women may sue and be sued as 
 though unmarried. 
 
 36. 
 
 4. Where the action is for the administration or partition of 
 an estate in which an infant is interested or where the action 
 is for any purpose other than the recovery of money from an 
 infant defendant personally, or of lands, goods or chattels, of 
 which he is personally in possession, service on the official 
 guardian shall be good service on the infant defendant if such 
 infant defendant is resident in Ontario, at the time of such 
 service. 
 
 See Eng. R. Sup. C, O. IX., r. 4 ; G. 0. Chy. 517-520, 610-612, 616. 
 
 See Act, sec. 66 and notes to various sections. 
 
 This provision is much more limited than those regulating the practice hereto- 
 fore prevailing in the Court of Chancery. (1) It applies only to service of writs of 
 summons ; see the title of the order. (2) Only to cases in which the infant is 
 resident in Ontario. (3) It does not apply in any of the cases specially excepted, 
 ia) the recovery of money from an infant personally, (6) the recovery of lands, or 
 (c) goods or chattels of which the infant is personally in possession. 
 
 (1) It applies only to writs of summons. Where no other provision is made by 
 the Act or rules, the former procedure and practice remain m force, and where 
 there is any conflict, the better practice will prevail, see notes to sec. 12 of the Act ; 
 and by sec. 17, sub.-s. 10, the rules of equity are to prevail where any conflict 
 exists. The Chancery Practice was regulated by G. 0. 610-612, which are as fol- 
 lows : — 
 
 610. In any proceeding in the Court in which it may be necessary to appoint a 
 guardian ad litem for an infant, the person desiring such appointment shall, 
 upon an allegation contained in the praecipe of the infancy of the person for whom 
 such guardian is sought, be entitled to an order ex parte from the Clerk of Records 
 and Writs, or where the bill is filed or the proceedings are taken outside of Toronto, 
 from the Deputy Registrar of the County where such bill is filed, or proceedings 
 are had, appointing a guardian ad litem, to such infant. 
 
 611. With the order appointing such guardian shall be served on the guardian 
 one copy of the proceedings had up to the time of such appointment, or of such 
 part thereof as may be necessary to enable the guardian to protect the interests of 
 the infant to whom he has been appointed guardian. By a circular sent by the 
 Judges to the Clerk of Records and Writs and Deputy Registrars, dated 22nd 
 February, 1875, it was directed that in each order issued under G. O. 610 the 
 name of Mr. John Hoskin should be inserted as guardian, except in cases where 
 he represents the plaintiff, or a person adverse in interest to the infant for whom a 
 guardian is being appointed, when Mr. John S. Ewart should be appointed such 
 guardian. 
 
 (2) Where the defendant it renidetU in Ontario.— VfiU it be necessary if investiga- 
 ting a title to land which has been sold, or the eq[uity of redemption in which has 
 been foreclosed in an action, to see whether an infant so served was resident in 
 Ontario, see Gunn v. Doble, 15 Gr. 655 ; McLean v. Grant, 20 Gr. 76. 
 
 (3) The recovery of money or land. — Does a mortgage suit come within this ex- 
 ception ? In Barwick v. Barwick, 21 Gr. 39, Blake, V. C. held that a suit for fore- 
 
 ■i'4\ 
 
SERVICE OF WRITS. 
 
 151 
 
 closure or sale is not a suit for the recovery of land, but is a suit for the recovery O. ^I, 
 of money due upon land. See also Smith v. Hill, L. R. 9, Ch. D. 143. The word R. 4. 
 "personally " may however, have the effect of excluding mortgage cases from the 
 exception. 
 
 (a) If in such case there is more than one infant defendant, for 
 whom service is to be made on the official guardian, one copy- 
 only need be so served. 
 
 (h) From the time of such service the official guardian 
 shall become and be the guardian ad litem of the infant, 
 unless and until the Court otherwise orders ; and it shall 
 be his duty forthwith to attend actively to the interests of 
 the infant in the action, and for that purpose to communi- 
 cate with all proper parties, including the father or guardian 
 (if any) of the infant, and also the person with whom or under 
 whose care the infant resides, in case such person is not the 
 infant's father or guardian ; and the guardian is to make such 
 other inquiries and to take such other proceedings as the 
 interests of the infant may require. 
 
 (c) Any person interested may move before a judge in Cham- 
 bers, on such material as he may think proper, for an order 
 appointing a guardian other than the official guardian so 
 served; whereupon such order as may be considered most 
 conducive to the interests of the infant shall be made, and 
 a copy of the order shall forthwith be served on the official 
 guardian. 
 
 See Eng. R. Sup. C, 0. IX, r. 4 ; G. 0. Chy. 517-520, 010-612, 616. 
 
 A suit was brought for redemption of mortgaged property, and the mortgagee 
 having died, his widow and infant heirs were the defendants. Upon an application 
 for the appointment of a guardian cui litem to the infant defendants, a solicitor 
 nominated by the mother was appointed guaMian, it being considered that there 
 could be no conflict of interest between the mother and her children. Horkins v. 
 Harty, 6 P. R. 200. 
 
 This decision was, however, prior to the G. O. Chy. 61U-612 and circular referred 
 to in notes to 0. VI. r. 4. 
 
 37. 
 
 6. Where an action is brought against an infant defendant,for 
 the recovery of money from him personally or lor the recovery of 
 lands, goods, or chattels of which he is personally in possession, 
 service shall be made on the infant personally, and one copy of 
 the writ shall also be posted (prepaid) to, or delivered at the 
 office 0^ the official guardiau. 
 
 See Eng. R. Sup. C, 0. IX. r. 4 ; G. O. Chy. 517-520 ; see notes to 0. IV. 
 
 This order requires personal service and does not seem to be subject to the 
 qualification " wherever it is practicable " as in the case of adults under O. VI. r. 2. 
 
 
 ml. 
 
 hi 
 

 l^^ 
 
 s- 
 
 ^■ 
 
 152 JUDICATURE ACT. 
 
 O. FI. If an infant be resident out of the jurisdiction, service can in no case be made upon 
 
 B. A. the official guardian O. VI. r. 4, If resident out of the jurisdiction, and the action 
 
 is for the recovery of money from him personally, or for the recovery of lands, 
 
 goods or chattels of which he is personally in possession, and this rule is to be taken 
 
 literally, personal service cannot be dispensed with. 
 
 38. 
 
 6. Where a lunatic or person of unsound mind not so found 
 by inquisition or judicial declaration, is a defendant to the 
 action, service on the committee of the lunatic, ov on the 
 person with whom the person of unsound mind resides, or 
 under whose care he or she is, shall, unless the Court or Judge 
 otherwise orders, be deemed good service on such defendant. 
 
 See Eng. 0. Sup. C, 0. IX., r. S; R. S. 0., c. 40, s. 70 ; c. 220, ss. 49^1 ; G. 
 O. Chy. 519, 520. 
 
 Inquisition. — This refers to proceedings under R. S. O., c. 40, s. 59 et$eq. 
 
 Where the lunatic ha" been so found by inquisition or judicial declaration the 
 committee of the estate generally applies to be appointed guardian to answer and 
 defend the suit which will be ordered as of course, Dan. Chy. Forms, p. 55 ; but if 
 no committee has been appointed, or the committee ha& an adverse interest, a 
 guardian will be appointed, Hewlett v. Wilbraham, 6 Mad. 423 ; Worth v. Mo- 
 Kenzie, 3 Mac. & G. 363. 
 
 Committee. — R. S. 0., c. 220, ss. 49, .50, provide as follows : — The Inspector of 
 Prisons and Public Charities shall ex officio, and by his name of office, be the com- 
 mittee of every lunatic who has no other committee ; and who is detained in any public 
 asylum referred to in the second, third and fourth sections of this Act, and whether 
 such lunatic is detained under an order from the Lieutenant-Governor or otherwise ; 
 and t'le said Inspector and his successors in office, in manner aforesaid, shall be the 
 committees of any lunatic in the Rockwood Asylum at Kingston, who has no com- 
 mittee, and who is detained under an order from the Lieutenant-Governor. 
 The Court of Chancery may at any tii>ie appoint a committee of any such lunatic 
 if such Court considers it expedient so to do, and upon such committee being ap- 
 pointed the said Inspector shall, while such other committee exercises such office, 
 cease to be the committee of said lunatic, but the said Inspector, upon delivering 
 up the said lunatic's estate, shall retain so much thereof as may be required to pay 
 any sum then due for maintenance. Notwithstanding another committee may have 
 been appointed by the Court of Chancery, every act of the Inspector of Prisons 
 and Public Charities, as the committee of anv lunatic or other insane person, shall be 
 valid and binding upon the estate of such lunatic or other insane person, if done 
 previously to a copy of the order appointing another committee, together with a 
 notice of the persons who have been approved by such Court, as the sureties of 
 such committee, being served upon the said Inspector. 
 
 Service. — Service on the keeper of an asylumlwas allowed, Thorn v. Smith, W, 
 N. (1879) 81. 
 
 Default of appearance. 
 T. 1 (a). 
 
 -As to proceedings in default of appearance, see 0. IX. 
 
 39. 
 
 7. No further proceedings are to be taken against such a 
 defendant who has no committee, until a guardian ad litem is 
 appointed. 
 
 The mod* of proceeding is governed by O. IX. r. 1, (aj ; see notes to these 
 rules. 
 
SERVICE OF WBITS. 
 
 3. — On Partners and other Bodies. 
 
 40. 
 
 8. Where partners are sued in the name of their firm, the 
 writ shall be served either upon any one or more of the part- 
 ners, or, at the principal place within Ontario of the busi- 
 ness of the partnership, upon any person having at the time 
 of service the control or management of the partnership busi- 
 ness there ; and, subject to the rules hereinafter contained, 
 such service shall be deemed good service upon the firm. 
 
 See Eng. R. Sup. C, 0. IX., r. 6. 
 
 The various rules as to service upon partners, appearance by partners, partners 
 as parties to an action, and judgment against partners, are collected in the notes to 
 0. IV., r. 2 (6). To enable service of a writ of summons to be made under O. VI., 
 r. 9, upon the defendant's manager, it is not necessary that the defendant himself 
 should be within the jurisdiction. It is enough if he, carrying on business in the 
 name of a firm, has a place of business within the jurisdiction, under the control 
 or management of some person, O'Neil v. Clason, 46 L. J. N. S. C. L. 191. 
 
 153 
 
 O. Fl. 
 
 41. 
 
 9. Where one person carrying on business in the name of a 
 firm apparently consisting of more than one person, shall be 
 sued in the firm name, the writ may be served at the principal 
 place within Ontario of the business so carried on upon 
 any person having at the time of service the control or 
 management of the business there; and subject to any 
 Rules of Court, such service shall be deemed good service 
 on the person so sued. 
 
 See Eng. R. Sup. C, June, 1876, r. 4. 
 See notes to preceding rule. 
 
 43. 
 
 10. Where, by any statute, provision is made for service of 
 any writ of summons, bill, petition, or other process upon any 
 corporation, or any society or fellowship, or any body or num- 
 ber of persons, whether corporate or otherwise, every writ of 
 summons may be served in the manner so provided. 
 
 See Eng, R. Sup. C, 0. IX., r. 7. 
 
 The following Statutes make provisions for service upon corporations : — 
 
 R. S. 0., c. 50, 8. 21. Every such writ issued against a corporation aggregate, 
 and, m the absence of its appearance by attorney, all papers and proceedings in 
 the action before final judgment may be served on the mayor, warden, reeve, 
 president, or other head officer, or on the tov,-nship, town, city or county clerk, 
 or on the cashier, manager, treasurer, or secretary, clerk or agent of such cor- 
 poration, or of BAy branch or agency thereof in Ontario; and every person who, 
 within Ontario, transacts or carries on any of the business of or any busmess for any 
 
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 V. . 
 
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 JUDICATURE ACT. 
 
 corporation whose chief place of business is without the limits of Ontario, shall, 
 for the purpose of being served with a writ of summons issued against such cor- 
 poration, be deemed the agent thereof. 
 
 Sec. 22. Every writ of summons issued against a railway, telegraph, or express 
 corporation, and all subsequent papers and proceedings in the event of an appear- 
 ance not having been duly entered, may be served on the agent'of such corporation, 
 at any branch or agency thereof, or on any station master of any railway companv, or 
 on any telegraph operator, or express agent having charge of any telegraph or 
 express office belonging to such corporation; and any such master, operator or 
 express agent shall, for the purpose of being served with a writ of summons issued 
 against such corporation or any paper or proceeding as aforesaid, in the event of 
 non-appearance, be deemed the agent thereof. 
 
 R. S. 0., c. 149, s. 43 : — " The Act containing General Provisions applicable i 
 Joint Stock Companies incorporated by special Act for certain purposes." Serv* j 
 of all manner of summons or writ whatever upon the Company may be made ov 
 leaving a copy thereof at the office or chief place of business of the Company, with 
 any grown person in charge thereof, or elsewhere with the president or secretary 
 thereof ; or if the Company has no known office or chief place of business, and has 
 no known president or secretary, then, upon return to tnat effect duly made, the 
 Court shall order such publication as it may deem requisite to be made in the pre- 
 mises, for at least one month, in at least one newspaper; and such publication 
 shall be held to be due service upon the Company. 
 
 R. S. O. c. 150, s. 60. "The Act respecting the incorporation of Joint Stock 
 Companies by Letters Patent." This provision is a copy of Sec. 43, just quoted. 
 
 As to Insurance Companies, see 42 Vic. (Z>) cap. 42, s. 9 ; R. S. O. c, 160, s. 16 ; 
 Wilson V, The ^tna Life Insurance Company, 8 P. R. 131 ; and see Howland v. 
 Grierson, 5 U. C. L. J. 19 ; Campbell v. Taylor, 1 Ch. Ch. R. 2. If a foreign 
 corporation has a place of business within the jurisdiction, service may be effected 
 on the person in charge, Newby v. Van Oppen, L. R. 7 A. B. 293. Service upon 
 a booking-agent of a Scotch Railway at a station on an English line, was held in- 
 sufficient, Mackereth v. Glasgow and South- Western R. Co., L. R. 8 Ex. 149, and 
 see Taylor v. Grand Trunk Railway, 4 P. R. 300. 
 
 4. — In particular Actions. 
 
 43. 
 
 11. Service of a writ of summons in an action to recover land 
 may, in case of vacant possession, when it cannot otherwise be 
 effected, be made by posting a copy of the writ upon the door 
 of the dwelling-house or other conspicuous part of the property. 
 
 See Eng. R. Sup. C, O. IX. r. 8 ; R. S. O., c. 51. s. 8. 
 
 In case of a vacant possession.— Service may be by posting a copy of the writ and 
 notice upon the door of the dwelling-house or other conspicuous part of the property, 
 R. S. O., c. 51, 8. 8. And by nailing a copy to a tree upon the land which was a 
 wild lot, Bumham v. Jones, 32 U. C. R. 83. 
 
 If the premises have been abandoned, proceedings may be had as on a vacant 
 possession, Doe, d., Laundy v. Roe, 12 C. B. 451 ; see also Hooper v, Burley, 1 U. 
 0. L. J. N. S. 273 ; Popplewell & Capreol v. Abbott, 5 O. S. 61. 
 
 5. — Generally. 
 44. 
 
 12. The person serving a writ of summons shall, within 
 3 days at most after such service, indorse on the writ the 
 day of the month and week of the service thereof ; otherwise 
 
 
SERVICE OP WRITS. 
 
 
 156 
 
 the plaintiff shall not be at liberty, in case of non-appearance, •• ^^* 
 to proceed by default without the leave of a Judge, such leave ** **' 
 to be obtained at the cost of the plaintiff, and such coat to be 
 in no event charged against the defendant. 
 
 (a) Every affidavit o'c service of such writ shall mention the 
 day on which such indorsement was made. 
 
 See Eng. R. Sup. 0., 0. IX., r. 13 ; R. S. O. c. 50, s. 25 ; Eng. C. L. P. 
 Act of 1852, 8. 15. 
 
 This rule does not apply to cases of substituted service, Dymond v. Croft, L. R. 
 3 Ch. D. 512. 
 
 Three dawa. —Holidays are not included, O. LII., r. J. The days are to be 
 reckoned exclusively of the first day and inclusively of the last, O. LII. , r. 3. If the 
 last day falls on a Sunday or other day on which the offices are closed, it will be 
 sufficient if the act is done on the day on which the offices are next open, 0. LII., 
 r. 4. 
 
 In Hastings v. Hurley, W. N. (1881) 39, an order was made giving the plaintiffs 
 leave to serve the writ at Galveston, in Texas, on one of the defendants, who was 
 residing there. The writ was served on him bv the British consul there, but the 
 Consul omitted to make the indorsement on the writ within three days at most 
 after service. Yemon R. Smith, for the plaintiffs, now asked that the time for 
 making the indorsement might be extended under r. 6 of Order LVIL, (r. 9, O. 
 LII., Ont.) Fry, J., held that he had power under that rule to extend the time, 
 and he extended it for a month. But he said that the Consul must make a new 
 affidavit of service. 
 
 if^l l;l 
 
 
 1 
 
 ORDER VII. 
 Service out of Ontario. 
 
 45. 
 
 1. Service out of Ontario of a writ of summons or •• vii. 
 notice of a writ of summons may be allowed by the Court or a *• *• 
 Judge in the following cases : — 
 
 (a) Where the whole or any part of the subject-matter of the 
 action is land, stock, or other property, situate within 
 Ontario, or is any act, deed, will, or thing affecting such land, 
 stock or property ; 
 
 (h) Where the contract, which is sought to be enforced or 
 rescinded, dissolved, annulled, or otherwise affected in any 
 such action, or for the breach whereof damages or other relief 
 are or is demanded in such action, was made or entered into 
 within Ontario ; 
 
 (c) Where there has been a breach within Ontario of any 
 contract wherever made ; 
 
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156 
 
 JUDICATUKE ACT. 
 
 O. FII. 
 B. 1. 
 
 i 
 
 
 
 (d) Where any action or thing sought to be restrained or 
 removed, or for which damages are sought to be recovered, 
 was or is to be done, or is situate, within Ontario ; 
 
 See R S. 0., c. 50, s. 48; Enc. R. Sup. C, O. II„ r. 4; lb., 0. XL; Eng. R. 
 Sup. 0., June, 1876, r. 5; G. 0. Chy., 90, 100, 102, 620. 
 
 Under this Order, as under the Com. Law Pro. Act, R. S. 0., c. 50. s. 50, where 
 the defendant is a foreigner out of the jurisdiction, notice of the writ (Form No. 3, 
 appendix A. Part 1) must be served, and not the writ itself, Westman v. 
 Aktiebolage Ekmans, etc., L. R. 1 Ex. 237. The same rule applies to an action 
 in the Chancery Division, as in the Common Law Divisions, notice of the writ, and 
 not the writ itself, must be served, re Howard, Padley v. Camphausen, L. R. 10 
 Ch. D. 550. 
 
 This order applies to service of notices on third persons, under O. XII. , rr. 19, 
 20, the Swansea Shipping Company (Limited) v. Duncan, L. R. 1 Q. B. D. 644. 
 
 These rules apply to foreign corporations, whether they have offices within the 
 jurisdiction or not, Newby v. Van Open, L. R. 7 Q. B. 293; Scott v. Royal Wax 
 Candle Company, L. R. 1 Q. B. D., 404. As to the power of a foreign corpora- 
 tion to sue, and for an exhaustive review of the authorities with regard to the 
 right of a foreign corporation ^o contract and carry on business in Ontario, see 
 Howe Machine Company v. Walker, U. C. R. 37. 
 
 May be allowed. — The practice hitherto in Chancer jr was to await the expiration 
 of the time for answer, and then, if none filed, to move in Chambers^ for an order pro 
 eonfesso. Upon this application it was necessary to prove the identity of the person 
 served abroad. It was not sufficient for the deponent to the affidavit of service to 
 swear that he served " the above-named defendant." The affidavit was required to 
 shew the means of knowledge, Armour v, Robertson, 1 Ch. Ch. R. 252. The 
 plaintiff's solicitor had written to a defendant out of the jurisdiction, and received 
 letters in reply. He had also mailed to him an office-copy of the bill and 
 received a letter acknowledging the receipt of it. An order allowinG^ the service 
 was granted, but a co^y was directed to be mailed to the defendant, Woodside v. 
 the Toronto Street Railway Company, 2 Ch. Ch. R. 24. A written admission of 
 service, and that the party making it was the defendant in the bill, made by a 
 defendant residing in Montreal, was received as sufficient proof of service, on an 
 affidavit of a party within the jurisdiction proving the hand-writing, being filed, 
 Erie V. Hunt, 2 Ch. Ch. R. 395. 
 
 The practice at law was to obtain an order for leave to proceed under R. S. C, 
 0. 50, ss. 49 and 50, which are as follows :— 
 
 49. Upon the Court or Judge being satisfied that there is a cause of action 
 which arose in Ontario, or in resoect of the breach of a contract made therein, and 
 that the writ has been personally served upon the defendant, or that reasonable ef- 
 forts have been made to effect personal service thereof upon the defendant, and that 
 it came to his knowledge, and either that the defendant wilfully neglects to appear 
 to such writ, or that he is living out of Ontario in order to defeat or delay his 
 creditors, such Court or Judge may from time direct that the plaintiff shall be at 
 liberty to proceed in the action in such manner and subject to such conditions as 
 to such Court or Judge (having regard to the time allowed to the defendant to ap- 
 pear bein^ reasonable, and to the other circumstances of the case) seem fit ; but 
 the plaintiff, before obtaining judgment, shall prove the amount of the debt, or 
 damages claimed by him in such action, either before a judge or jury, on an assess- 
 ment in the usual mode, or by reference in the manner hereinafter provided, ac- 
 cording to the nature of the case, as such Court or Judge may direct. 
 
 50. In any action against a person residing out of Ontario and not being a 
 British subject, the like proceedings may be taken as against a British subject resi- 
 dent out of Ontario, except that the plaintiff shall, instead of the writ of sum- 
 mons mentioned in the forty-eighth section, issue a writ of summons in the words 
 or to the effect of Form No. 4 m Schedule A to this Act, and shall in manner 
 aforesaid serve a notice of such last-mentioned writ upon the defendant, which 
 notice shall be in the form also contained in the said Form No. 4 ; and such service 
 or reasonable efforts to effect the same, shall be of the same force and effect as the 
 service or reasonable efforts to effect the service of a writ of summons in any action 
 against a British subject resident abroad, and by leave of the Court or a Judge, upon 
 its or his being satisfied by affidavit as aforesaid, the like proceedings may be nad 
 and taken thereupon. 
 
SERVICE OUT OF ONTARIO. 
 
 ii>7 
 
 The practice under the present rules seems to be to move for an order allowing 
 the service, see O. VII., r. 4, although 0. IX., r. 3, providing for judgment in de- 
 fault of appearance makes no mention of such an order, but requires an affidavit 
 of service merely. In England it is necessary to obtain an order for leave to issue 
 a writ for service out of the jurisdiction, O. 11., r. 4, but there is no correspond- 
 ing rule in the Ontario Act. The form of the order, however, allowing a writ to 
 issue, has been copied among the forms in the appendix to the Act as No. 110, and 
 this fact may leave the question, whether it is necessary in Ontario to procure such 
 an order, one for judicial determination^' . The form is otherwise more applicable to 
 English than Ontario practice, for it prescrjibes the time for appearance, a matter 
 which is regulated by O. VII., r. 2. S^ ac-*- ««- J U~ /K^ ;> A C X L /X 7^ » 
 
 In England it was held that where such an order had been obtained it was 
 unnecessary to obtain a further order giving leave to sign judgment, Scott v. The 
 Royal Wax Candle Co., L. R. 1, Q. B. D. 404 ; and see Young v. Brassey, T-. R. 1, 
 Oh. D. 277. 
 
 Cmtract, where made. — Where a contract was entered into by means of corres- 
 pondence, it was deemed to have been made at the place where the final assent was 
 given. An offer written in Kingston to a firm in Montreal, and accepted by letter 
 mailed from Montreal, was deemed to be a contract mode in Montreal, Gildersleeve 
 V. McDougall, 31, U. C. C. P. 164 ; and see McGiverin v. James, 33 U. C. R. 20?, 
 210 ; and O'Donohoe v. Wiley, 43. U. C. R. 350 ; Williams v. Corby, 5 app. R. 626. 
 
 Breach of Contract. — In Gildersleeve v. McDougall, 31 U. 0. C. P. 168, a con- 
 tract was made out of the jurisdiction for the manufacture and sale of certain 
 machinery to be used within the jurisdiction, and there was the usaal warranty 
 that it should be reasonably fit for the purposes for which it was intended. For 
 breach of this warrant an action was brought. Osier J. said "In Jackson v. 
 Spittal, L. R. 5 C. P. 542, it was held that the expression ' cause of action ' in 
 sec. 18 of the English Common Law Procedure Act which corresponds with sec 49 
 of ours, does not mean the whole cause of action, i.e., contract and breach, but 
 the act on the part of defendant which gives' the plaintiff his cause of complaint. 
 A difference of opinion existed in the English Courts as to the proper construction 
 of these words, and in Vaughan v. Weldon, L. R. 10 0. P. 47, it was announced 
 that a conference of the Judges having been held on the subject, all the Courts had 
 agreed, for the sake of conformity, to act upon the decision in Jackson v. Spittal, 
 and that it was sufficient that the breach of the contract should have arisen within 
 the jurisdiction. The cause of action in this case was the breach of the defendant's 
 warranty that the forging manufactured by him for the plaintiff was reasonably fit 
 and proper for the purpose for which it was intended. After it had been delivered 
 and used for some time by the plaintiff in Ontario, it proved defective. The 
 breach of the warranty, therefore, occurred in Ontario ; and according to the cases 
 referred to, the cause of action arose there, within the meaning of sec. 49 of the 
 Common Law Procedure Act ;" and see Harris v. Fleming, L. R. 13, Ch. D. 208, 
 pott under contract affected. 
 
 Action for rent of property out of jurisdiction, but both parties vnthin jurisdiction. — 
 Whitaker v. Forbes, L. R. 1 C. P. D. 51, was an action of debt for arrears of a rent 
 charge uiwn lands out of the jurisdiction and prior to the Judicature Act. It was 
 held that the venue w.os local, and that the action, therefore, could not be main- 
 tained. It was suggested, however, that the Act, by abolishing the distinction be- 
 tween local and personal actions as regards venue, would for the future render such 
 actions maintainable. 
 
 In Buenos Ayres and Ensenada Port Railw^ Company v. The Northern Rail- 
 way Company of Buenos Ayres, L. R. 2 Q. B. D. 210, claim stating that the 
 plaintiffs and defendants were each of them limited companies, with registered 
 offices in London ; thlMt the action was brought for rent of a railway station in 
 Buenos Ayres (into possession of which the defendants were put by the plaintiffs), 
 and for part of the cost of constructing lines of railway and approaches to the 
 station. Defence, that the plaintiff and defendant companies were domiciled in 
 the Argentine Republic, and carried on business there ; that the premises in ques- 
 tion were constructed on land which was the property of the RepuDlic, and that the 
 plaintiffs and defendants were joint concessionaries under the Republic of certain 
 easements appurtenant thereto. That the construction of the premises was di- 
 neted by the Government of the Republic, and was for the benefit and conveni- 
 mce of the citizens of Buenos Ayres, and that by the laws of the Republic powers 
 of adjusting all right* arising out of the conBtruction and applicable to the claim 
 
 O. Til. 
 B. 1. 
 
 CD 
 
168 
 
 JUDICATURE ACT, 
 
 
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 ;1 
 
 ••i 
 
 O. FII. of the plaintiffs were vested in the Government, and that the contract (if any) as 
 
 gl \ to the cost of the construction was made at Buenos Ayres, and was subject to the 
 
 ' ' law of the place of contract, and that the Republic had assumed jurisdiction over 
 
 the plaintiffs' claim : — Held, on demurrer that the defence was bad, as both parties 
 to the action were within the jurisdiction of the English Courts, and the facts 
 alleged did not shew that the Argentine Republic had exclusive jurisdiction over 
 the claim. 
 
 Slander of title made within, at to property without jurisdiction, dJendant being 
 out of jurisdiction. —In Casey v, Arnott, L. R. 2 C. P. D. 24, Grove, J., said:— 
 Our decision in this case must turn on the meaning of Order XI. That Order 
 provides that service of a writ out of the jurisdiction may be allowed whenever the 
 whole or any part of the subject-matter of the action is land, or stock, or other 
 property situate within the jurisdiction, or^any act, (deed, will, or thing. afiFecting such 
 land, stock, or property. I do not think that this case is within the meaning of 
 these words. I do not think that the property can be affected within the meaning 
 of the Order by mere words spoken about it. The words seem to me to point to 
 some effect directly produced upon the thing itself, as when|it is physically affected, 
 or the property in it is affected. In this case mere statements were made about 
 the thing, that affected its value in the hands of the owners. It was not the thing 
 itself that was affected, but the minds of intending purchasers. 
 
 Cause of action at sea and defendant out of jurisdiction. — The ordinary Courts of 
 this country have no jurisdiction over acts done by foreigners on the high seas 
 below low-water mark ; consequently, O. XI., r. 1, of the rules of 1875, (Ont. 0. 
 VII. , r. 1 (e) ) does not warrant an order for the service of a writ on a foreigner 
 residing abroad, in respect of a cause of action arising at sea, below low- water mark, 
 though within three miles of the English coast, Harris v. Owners of Franconia, L. 
 R. 2 C. P. D. 173. 
 
 Proceedings pending in foreign Court. — In Norton %>. Florence Land and Public 
 Works Company, L. R. 7 Ch. D. 332, Jessel, M. R., at p. 337, said:— "It seems 
 that those houses being in Florence, the bank has taken proceedings in the Court 
 of Florence, the proper Court, having jurisdiction, to establish their title; and the 
 litigation then to which the plaintiffs are or may be parties being in the Court of 
 the country having actual jurisdiction over the subject-matter, and having enter- 
 tained that jurisdiction by a prior litigation, it is contrary to all the rules of the 
 comity of nations that this Court should actively interfere between the same liti- 
 gants. That also appears to me to be an answer to this application." 
 
 Foreign Government.— In Tarycross v. Dreyfus, L. R. 5 Ch. D., at p. 616, Jessel, 
 M. R., said: — "The first and most important point we have to decide is what the 
 meaning of the bond of a foreign government, given to secure the payment of a 
 loan, is. As I understand the law, the municipal law of this country does not 
 enable the tribunals of this country to exercise any jurisdiction over foreign govern- 
 ments as such. Nor, as far as I am aware, is there any international tribunal which 
 exercises any such jurisdiction. The result, therefore, is that these so-called bonds 
 amount to nothing more than engagements of honour, binding, so far as engagements 
 of honour can bind, the Government which issues them, but are not contracts en- 
 forcible before the ordinary tribunals of any foreign Government, or even by the 
 ordinary tribunals of the country which issue them, without the consent of the 
 Government of that country. That b<>ing so, it appears to me that the bond in 
 question confers no right of action on the plaintiff, and on that ground it seems to 
 me it follows that the demurrer ought to be allowed." 
 
 Contract affected. — A contract was made with plaintiff out of the jurisdiction 
 for the working of certain mining lands also out of the jurisdiction. Subsequently 
 the defendant, ignoring the plaintiff's rights, entered into another arrangement 
 within the jurisdiction. The plaintiff brought an action claiming a certain interest 
 in the lands, and an injunction restraining the defendants fibm carrying into effect 
 the second agreement. In giving judgment. Hall, V. C., said :— "The next ques- 
 tion is whether this is a case in which the Court can make the order under the pro- 
 visions of the first rule of Order XI. (Ont. 0. VII., r. 1) as to service out of the 
 jurisdiction, which rule is divisible into four branches. Now the first branch of 
 that rule does not seem to be applicable here, nor is the present case capable of 
 being brought within it. The next branch is this : ' whenever the contract which is 
 sought to oe enforced or rescinded, dissolved, annulled or otherwise affected in any 
 such action, or for the breach whereof damages or other relief are or is demanded 
 in such action, was entered into or made within the jurisdiction.' That would not 
 of course apply to the original contract under which the plaintifl claims, and which 
 
SERVICE OUT OF ONTARIO. " 169 
 
 waa made in India, I am not prepared, however, to say th .c a plaintiff who is O. VII« 
 
 unable to bring his own contract within that branch, bec<iUBe it was not made R. l. 
 within the jurisdiction, cannot come to the Court and say, ' here is a contract which 
 I seek to have affectea by the interposition of the jurisdiction of the Court, be- 
 cause it is one which ought not (having regard to my own contract) to be allowed 
 to be carried into effect ; I am not, it is true, entitled to relief upon my own con- 
 tract, but a contract has been entered into here in violation of my contract, and it 
 is with reference to that second contract that I seek the interposition of the 
 Court.' And I am not, 1 repeat, prepared to say that such a case would not come 
 within the words of that branch. The whole clause must, as it appears to me, 
 receive a wide construction, so as not to prevent proper and reasonable cases from 
 ioeing brought within it. Therefore, I think, the limited construction attempted 
 to be put upon it is not correct. The contract, which is the immediate subject of 
 the complamt in this action, was made within the jurisdiction, for it is said the 
 Gold Company purchased the property, by their agent in London, and procured a 
 contract from a vendor who signed in London, and they claim the benefit of that 
 contract. That, therefore, is a contract entered into within the jurisdiction, and 
 it appears to me quite sufficient (not putting a narrow construction upon the rule) 
 to bring the contract within it. The rule, however, proceeds further. Its third 
 branch is, 'and whenever there has been a breach within the jurisdiction of any 
 contract wherever made.' And the plaintiff's case is, in my opinion, again sus- 
 tainable on the ground that within the meaning of that branch of -he rule, there 
 has been a breach within the jurisdiction of a contract made and entered into 
 with him in India. There has been that breach of contract by the contract entered 
 into within the jurisdiction to sell this property, ignoring the plaintiff and disposing 
 of his property altogether without regard to his rights, in effect committing a breach 
 of his rights, acquired under his agreement. Therefore, on the whole, it seems to 
 me that the order for service out of the jurisdiction was an order properly made, 
 and I refuse this application with costs." Harris v. Fleming, L. R. 13 Ch. 1). 208. 
 And see Cresswell v. Parker. L. R. 11 Ch. D. 601. 
 
 Material on motion for order allo%oin{] service. — In England, as has been said, an 
 order is obtained for leave to issue the writ and no further order is obtained, but 
 as the point on such a motion and upon a motion to allow the service must be the 
 same, the English authorities will be useful. In Great Australian Gold Mining 
 Co. V. Martin, L. R. 5 Oh. D. at p. 10, James, L. J., said : — " It appeai-s tome that 
 the Court, having a discretion (and it is admitted on both sides that the Court must 
 have a discretion in the matter of the service of a writ abroad), before it brings to 
 this country an English gentleman residing in a colony, and holding high office 
 there to litigate a matter which of course must be a subject of great difficulty and 
 annoyance to him, ought to be satisfied that there is really a cause of action and 
 that that cause of action arose within the jurisdiction. But I think, before the writ 
 was issued in the first instance there ought to have been an affidavit of merits to this 
 extent, that is to say an affidavit by the solicitor, or some other person, saying, in the 
 clearest possible way, ' I have been advised and believe that the defendant, against 
 whom the writ is asked for, made a representation with regard to the matters in 
 question, and that that misrepresentation has been used in England, and that in 
 consequence of such misrepresentation so being used in England the company have 
 been put to a considerable expense, and he received the profits,' or something to 
 that effect. That would have been a cause of action, and a cause of action arising 
 in England. There is some difficulty in saying what ou^t to be done, but some- 
 thing equivalent to that was required by the old Common Law Procedure Act, and, 
 in my opinion, that ought to be now done before any man out of the jurisdiction is 
 called upon to answer anything that anybody chooses to put into a writ of summons. " 
 
 By 0. VII. r. 4 proof must be given to the satisfaction of the Court, or Judge, 
 that the service was duly made, and that the case was a proper one for service out 
 of the Province. To prove service, as has alreadv been shewn, considerable par- 
 ticularity had to be observed in identifying the defendant. This was unnecessarv 
 at law. The practice which most commends itself to the Judges will be followed, 
 see notes to sec. 12 of the Act. The affidavit of service may either describe the 
 notice or set out a copy of it, Bustros v. Bustros, L. It. 14 Ch. D. 849. 
 
 (e) Where the action is upon a contract or judgment though 
 the same be not within any of the four classes already enumer- 
 ated, but it appears to the satisfaction of the Court or a 
 
 I 
 
160 
 
 JUDICATURE ACT. 
 
 o. wn. 
 
 B I. 
 
 i( 't 
 
 Judge that the defendant has assets in Ontario of the value 
 of $200 at least which may be rendered liable to the judg- 
 ment in case the plaintiff should recover judgment in the 
 action ; and if the defendant does not appear, the Court or 
 a Judge is to give any directions which the Court or Judge 
 from time to time sees fit as to the manner of proceeding in the 
 action, and the conditions on which the same may be proceeded 
 with ; and shall require the plaintiff before obtaining judgment 
 to prove his claim and the amount of debt or damages (if any) 
 to the satisfaction of the Court or Judge, and in such mode as the 
 Court or Judge, having reference to the nature of the case, may 
 direct. 
 
 This ia an extension in an important respect of B. S. O., c. 50, a. 51. Under 
 that atatute if the plaintiff had a good cause of action and the defendant had assets 
 in Ontario of the value of $200, a Judge might " although the contract waa made 
 without Ontario, if the breach thereof occurred within Ontario, or in case the suit 
 Ih upon a judgment, notwithstanding the cause of action wholly arose out of On- 
 tario, direct from time to time that the plaintiff shall be at liberty to proceed." 
 Under the present Act the onlv matter necessary to be shewn, is that the defend- 
 ant has assets in Ontario to the value of $200, at least, which may be rendered 
 liable, etc. The questions of international law which may arise from an assump- 
 tion of jurisdiction in an action in which the plaintiff and the defendant with 
 ample means to meet all his liabilities, the contract and its breach are all without 
 the jurisdiction are beyond the scope of this work. 
 
 46. 
 
 2. Where a defendant is served out of Ontario he shall have 
 the time following for entering his appearance and delivering 
 his defence, and both proceedings shall be taken within the 
 time named. 
 
 (a) If the defendant is served within any part of the Domin- 
 ion of Canada (other than Ontario, Manitoba, Keewatin or the 
 North- West Territories, or British Columbia,) or within the 
 United States of America, he is to have 6 weeks after such 
 service. 
 
 (6) If served within any part of the United Kingdom (in- 
 cluding the Isle of Man and the Channel Islands), or of 
 Manitoba, Keewatin or the North-West Territories, British 
 Columbia, or Newfoundland, he is to have 8 weeks after such 
 service. 
 
 (c) If served elsewhere thri) w^itbin the limits above desig- 
 nated, he is to have 12 weeks after such service. 
 
 (d) The writ of summons in such case may be in the form 
 
'! 
 
 SERVICE OF WRITS. 
 
 161 
 
 set forth in Appendix (A), and the statement of claim is to be •• ^**' 
 served therewith. "* *' 
 
 See G. 0. Chy. No. 620. 
 
 These periods may be shortened however in a proper case, O. LIT. r. 9 pro- 
 vides :— A Court or a Judge shall have power to enlarge or abridge the time apoint- 
 ed by these rules, or fixed by any order enlarging time, for doing any act or taking 
 any proceeding, upon such terms (if any) as the justice of the case may require ; 
 and any such enlargement may be ordered although the application for the same ii 
 not made until after the expiration of the time appointed or allowed. 
 
 And see the following rule. 
 
 In Bloomfield v, Brooke, 6 Pr. R. 205 ; and Koen v. Koen lb., orders were 
 made shortening the time for answer. 
 
 47. 
 
 3. The preceding rules of this Order are not intended to in- 
 terfere with or affect the powers of the High Court, or a Judge 
 thereof in the exercise of the jurisdiction heretofore possessed 
 by any or either of the courts hereby consolidated, to direct 
 on application in that behalf, that service in any other manner 
 may be good service,or that the time for defending shall be other 
 than the time above named, or to give any special or other direc- 
 tion as respects proceeding against a defendant out of Ontario. 
 
 See notes to Ord. VI. r. 2. 
 
 Where the sole defendant in a foreclosure suit had been absent from the juris- 
 diction for fourteen years, and had not been heard of during that time, a motion 
 for the service of the bill upon him by publication was refused, Shaw v. Acker, 1 
 Ch. Ch. R. 395, Kelly v. Macklem, lb. 396, n. 
 
 Where an absent defendant is an infant, the Court has like powers as to grantmg 
 an order for service by publication, as in the case of an adult, DufiFy v. O'Connor, 
 1 Oh. Ch. R. 393. 
 
 48. 
 
 4!. It shall not be necessary before serving the writ, or notice 
 of the writ, to apply to the Court or Judge to allow the service ; 
 but in case proof is given to the satisfaction of the Court or 
 Judge that the service was duly made and that the case was a 
 proper one for service out of the Province under the preceding 
 rules, the service shall be allowed. 
 
 See R. S. 0., c. 50, ss. 49, 51. 
 
 As to necessity of obtaining an order for leave to issue a writ for service out of 
 the jurisdiction, see notes to O. VII., r. 1 (d). 
 
 49. 
 
 6. Notice in lieu of service shall be given in the manner in 
 which writs of summons are served. 
 
 See R. S. 0., c. 80, s. 50. 
 
 As to service of Mrrits, see prior rules of this order. 
 11 
 
 I 
 
 5 
 
 is 
 
162 
 
 JUDICATURE ACT. 
 
 O. Fill. 
 B. 1. 
 
 ORDER VIII. 
 Appearance. «Sz;c. 
 
 50. 
 
 1. All proceedings to final judgment in actions shall be car- 
 ried on in the office from which the writ of summons was issued, 
 except where by any Rule of Court it may be otherwise pro- 
 vided, or where a Court or Judge shall otherwise direct. 
 
 See Imp. Act of 1873, s. 64 ; Eng. R. Sup. C, O. 12, rr. 1-5 ; Eng. R. Sup. C, 
 June, 1876, r. 12 ; G. O. Chy., No. 35, R. S. O., c. 50, as. 12, 303. 
 
 This rule corresponds to the Common Law Procedure Act, R. S. 0., c. 50, s. 12. 
 
 In Chancery all pleadings in any cause must be filed at the same office. 
 
 Where a bill is filed with the Clerk of Records and Writs all orders of 
 course in the progress of the cause are to be issued by him ; and where it is filed 
 with a Deputy Registrar, all orders which can be issued by such Deputy Registrar, 
 are to be issued by him, G. O. Chy, 595. 
 
 i II 
 
 51. 
 
 2. A defendant shall enter his appearance to a writ of sum- 
 mons by delivering to the proper officer a memorandum in 
 writing, dated on the day of delivering the same, and contain- 
 ing the name of the defendant's solicitor, or stating that the 
 defendant defends in person. 
 
 See Eng. R. Sup. C, 0. XII. r. 5 ; R. S. O., c. 50, ss. 61, 62 ; Eng. R. Sup. C, 
 Feb., 1876, r. 5 ; R. Eng. Sup. C, April, 1880, r. 6. 
 
 For forma of appearance see Form 77, et seq. 
 
 The name of the solicitor must be given, Warren v. Love, 7 Doul. P. C. 602. A 
 defeiidant cannot appear by more than one attorney, Williams v, Williams, 10 M. 
 & W. 178 ; but see now Waldon v. Thompson, L. R. 6 Eq. 7. 
 
 If defendant is sued by a wrong name he should appear by his right name, 
 Lomax v. Kilpin, 4 D. & L. 295 ; stating that he is sued by the wrong name, Hob- 
 son V. Wadsworth, 8 Dowl. P. C. 601. If the defendant appear by the wrong 
 name the plaintitf may also declare against him by that name, see Clark v. Baker, 
 13 East, 273 ; Stroud v. Gerrard, 1 Salk. 8 ; Williams v. Bryant, 5 M. & W. 447. 
 
 Where several defendants represent one interest — not merely are in the same 
 interest — they should appear by the same solicitor, and if they sever in their de- 
 fence will be allowed but one set of costs. This rule applies to trustees and cett\ii 
 que trust, Farr v. Sheriile, 4 Hare 528 ; Gaunt v. Taylor, 2 Beav. 346 ; Course v. 
 Humphrey, 26 Beav. 402: Prince v. Hine, 27 Beav. 345 ; Attorney-General v, 
 Wy ville, 28 Beav. 464 , Hodson v. Cash, 1 Jur. N. S. 864 ; Heinrich v. Sutton, L. 
 R. 6 Ch. app. 220. One trustee, however, may have a separate interest from the 
 other, as if ne claims that the liability sought to be imposed rests upon his co- 
 trustee, and in such case the costs may be given wholly to him, W^bb v. Webb, 
 16 Sim. 55 ; and see Course v. Humphrey, 26 Beav. 402. The rule also appliea 
 to mortgagor and mortgagee. Remnant v. Hood, 27 Beav. 74. 
 
 See as to costs of various creditors and shareholders in the cases of winding-up 
 companies in which there mar be an analogy to an administration suit, re Hum- 
 ber Iron Works, L. R. 2 Eq. 16 ; re European Banking Co., 7%. 521 ; re Anglo- 
 Egyptian Navigation Co., L. K. 8, Eq. 660. 
 
APPEARANCE. 
 
 163 
 
 52. 
 
 3. The solicitor of a defendant appearing by a solicitor shall ®- '^■^■• 
 state in such memorandum his place of business. *• *' 
 
 See Eng. R. g ip. C, O. XII., r. 7. 
 
 53. 
 
 4. A defendant appearing in person shall state in such memo- 
 randum his address; and if he resides more than 2 miles from 
 the office from which the writ of summons was issued, he shall 
 state in such memorandum a place to be called his address for 
 service, which shall not be more than 2 miles from such 
 office. 
 
 See Eng. R. Sup. C, O. XII., r. 8 ; R. S. O., c. 50, s. 61. 
 
 54. 
 
 5. If the memorandum does not contain the address of the 
 solicitor or the defendant (as „ue case may be) as required by 
 the preceding rules, the memorandum shall not be received ; 
 and if such address shall be illusory or fictitious, the appear- 
 ance may be set aside by the Court or a Judge, on the applica- 
 tion of the plaintiff; and the plaintiff may»be permitted, by 
 the Court or a Judge, to proceed by posting up the proceedings 
 in the office from whence the writ was issued. 
 
 See Eng. R. Sup. C, O. XII., r. 9 ; R. S. O., c.50, s. 61. 
 
 55. 
 
 6. The Memorandum of Appearance may be in the Form 
 No. 77, Appendix (E), with such variations as the circum- 
 stances of the case may require. 
 
 See Eng. R. Sup. C, O. XII. , r. 10 ; R. S. O., c. 50, a. 62. An appearance is now 
 something more than it formerly was. Under O. XV. , r. 2, the defendant may, in 
 his appearance, state that he does not require the delivery of a irtatement of claim. 
 Under 0. YIII., r. 19, the defendant may limit his defence to a portion of the 
 amount claimed t/ the plaintiff. 
 
 (a) In case a defendant does not require the plaintiff to deliver 
 a statement of claim he shall so state in his memorandum of 
 appearance, and in that case shall serve a copy of such appear- 
 ance on the plaintiff. 
 
 See Eng. R. Sup. 0., April, 1880, r. 6. See note to preceding role. 
 
164 
 
 
 JUDICATURE ACT. 
 
 56. 
 
 7. Upon receipt of a Memorandum of Appearance, the officer 
 shall forthwith enter the appearance in the Procedure Book. 
 
 See Eng. R. Sup. C, O. XII., r. 11 ; Rules T. T., 1856, No. 1 (Ont.). 
 
 As to Procedure Book and the mode in which it is to be kept, see O. III., r. 16. 
 
 57. 
 
 8. Where partners are sued in the name of their firm, they 
 shall appear individually in their own names ; but all subse- 
 quent proceedings shall, nevertheless, continue in the name of 
 the firm. 
 
 See Eng, R. Sup. C, O. XII., r. 12. 
 
 See all the rules relating to partners as parties to actions in notes to 0. IV., r. 
 
 58. 
 
 9. Where any person carrying on business in the name of a 
 firm apparently consisting of more than one person shall be 
 sued in the name of the firm, he shall appear in his own name; 
 but all subsequent proceedings shall, nevertheless, continue in 
 the name of the firm. 
 
 See Eng. R. Sup. C, June, 1876, r. 6. 
 
 See all the rules relating to partners as parties to actions in notes to 0. IV., r. 
 2(h) 
 
 59. 
 
 10. If two or more defendants in the same action shall appear 
 by the same solicitor and at the same time, the names of all 
 the defendants so appearing shall be inserted in one memo- 
 randum. 
 
 See Eng. R. Sup. C, 0. XII, r. 13; Rules of Trin. Term, 1866, No. 2, Ont. 
 
 60. 
 
 11. A solicitor not entering an appearance in pursuance of 
 his written undertaking so to do on behalf of any defendant 
 shall be liable to an attachment. 
 
 See Eng. R. Sup. C, O. XII. r. 14; Rules of Trin. Term, 1856, No. 3, Ont; 
 Rules of H. T. 1853, No. 3, Eng. 
 
 Unitrtaking.—^w notes to O. YI., r. 1. 
 
 Atiachmmt.—'&aiora moving for an attachment, requMll skould be made of the 
 attorney to enter the appearance, Jacobs v. Magnay, 7 Jur., 826. 
 
APPEARANCE. 
 
 165 
 
 V. f 
 
 ■■•S» i'£l 
 
 61. 
 
 12. A defendant may appear at any time before judgment. •• vtu. 
 If he appear at any time after the time limited for appearance "• *** 
 he shall, on the same day, give notice thereof to the plaintiff's 
 solicitor, or to the plaintiff himself if he sues in person, and he 
 shall not, unless the Court or a Judge otherwise orders, be en- 
 titled to any further time for delivering his defence, or for any 
 other purpose, than if he had appeared according to the writ ; 
 and if the defendant appears after the time appointed by the 
 writ, and omits to give such notice of his appearance, the 
 plaintiff may proceed as in case of non-appearance. 
 
 See Eng. Sup, C, O. XII., r. 15 ; R. S. O., c. 50, s. CO. 
 
 An appearance filed while the plaintiff is signing judgment is in time, though 
 plaintiff affect to disregard it, Harris v. Andrews, 3 IT. C. L. J. 31. 
 
 In Chancery where a party or solicitor causes an answer, demurrer or replication 
 to be filed, he is to give notice thereof, on the same day, to the solicitor of the adverse 
 party, or to the adverse party himself, if he acts in person, G. O. Chy. 46. The omis- 
 sion to serve the notice does not entitle the opposite party to treat the pleading as 
 a nullity or as irregular. Smith v. Muirhead, 2 Gr. 395. Where a defendant's solici- 
 tor files an answer but neglects to give notice as required by G. O. Chy. 46, the 
 Court will not order it to be taken off the files, but will extend to the plaintiff the 
 time for taking the next step in the cause, by such time as has been lost by the 
 neglect in giving notice, Parker v. Brown, 3 Ch. Ch. R. 354 ; Wright v. Angle, 6 
 Ha. 107; Lloydfv. Solicitors' Life Assurance Co., 3 W. R. 640. 
 
 For form of notice of entry of appearance, see Forms, No. 13. 
 
 62. 
 
 13. Any person not named as a defendant in the writ of 
 summons for the recovery of land, may, without leave, appear 
 and defend, by filing with his appearance an aflSdavit stating 
 that he is in possession of the land either by himself or his 
 tenant (as the case may be), and stating further, in case the 
 possession is by his tenant, that the defendant named in the 
 writ is his tenant. The affidavit may be in the form of affi- 
 davit numbered 33, in appendix C. 
 
 63. 
 
 14. Where such affidavit is not filed, any person not 
 named as a defendant in a writ of summons for the recovery 
 of land, may, by leave of the Court or Judge, appear and defend, 
 on filing an affidavit shewing that he is in posseasion of the 
 land, either by himself or his tenant. 
 
 See Eng. R. Sup. C, O. XII., r. 18 ; R. S. O., c. 61, s. 10; Eng. C. L. P. Act 
 of 1852, s. 172. 
 
 ^omment upon this and the preceding rule.is reserved until they have received 
 the light of judicial consideration. 
 
 a. .91 
 
166 
 
 JUDICATURE ACT. 
 
 ' n 
 
 m 
 
 imM i 
 
 11 
 
 ' t-i ■ 
 
 O. Till. 
 
 a. 19. 
 
 I 
 
 64. 
 
 15. Any person appearing to defend an action for the 
 recovery of land as landlord in respect of property whereof he 
 is in possession in person or by his tenant, shall state in his 
 appearance that he appears as landlord. 
 
 See Eng. R. Sup. C, 0. XII., r. 19 ; R. S. 0., c. 51, s. 12. 
 
 65. 
 
 16. Where a person not named as defendant in a writ of 
 summons for the recovery of land enters an appearance ac- 
 cording to either of the foregoing Rules, the appearance shall 
 be entitled in the action against the party or parties named 
 in the writ as defendant or defendants ; and the person so 
 entering an appearance shall forthwith give notice thereof 
 to the plaintiff's solicitor, or to the plaintiff if he sues in 
 person, and shall in all subsequent proceedings be named as a 
 party defendant to the action ; and if such person appears and 
 omits to give notice of his appearance, the plaintiff may proceed 
 as in case of non-appearance. 
 
 See Eng. R. Sup. C, 0. XII., r. 20 ; Rules of T. T. 1856, No. 93, Ont. 
 
 Under this rule notice of entering the appearance is to be given "forthwith." 
 In the case of an appearance under rule 12 of this order it has to be given ' ' on the 
 ■ame day." 
 
 Proceed as in cote of non-appearance. — See 0. IX., r. 8. 
 
 66. 
 
 17. Any person appearing to a writ of summons for the 
 recovery of land shall be at liberty to limit his defence to a 
 part only of the property mentioned in the writ, describing 
 that part with reasonable certainty in his memorandum of ap- 
 pearance; or in a notice intituled in the cause and signed by 
 him or his solicitor, such notice to be served wi*^\.n 4 days 
 after appearance upon the solicitor whose name is indorsed 
 on the writ, if any j and if none, then filed in the proper office ; 
 and an appearance where the defence is not so limited shall be 
 deemed an appearance to defend for the whole. 
 
 This is a provision similar to Ejectment Act, R. S. 0., c. 51, s. 13. 
 
 Where a defendant in express terms defended for "part of lot, etc., men- 
 tioned in the writ, " he was not allowed at the trial to contend that what he 
 defended for was not part of lot, etc., and not on that account the property of the 
 plaintiff. Darling v. Wallace, 9 U. C. R., 611, 
 
 Want of reasonable certainty is ground for an application for better particulars, 
 Watson V. Brewer, 4 Pr. R. 202. 
 
 When a defendant files his appearance in an action of ejectment, the cause is at 
 issue, and the plaintiff may serve issue book and notice of triaL Defendant may, 
 
T-^f 
 
 APPEARANCE. 
 
 167 
 
 however, within four days, give notice limiting the defence ; and, if he do, 
 under the powers of amendment in the Administration of Jv 
 
 may O. Vlil. 
 
 Tustice Act, have the R. IT, 
 issue book amended in accordance with the limitation, but he is not entitled to 
 have the notice of trial set aside, Casy v. McGrath, 6 Pr. R. 274. 
 
 See the prior cases, Grimshaw v. White, 12 U. C. C. P. 521 ; Phillips v. 
 Winters, 3 Pr. R. 312 ; Buchanan v. Bettes, 2 U. C. L. J. N. S. 71. 
 
 Form of appearance limiting defence,- See Forms, No. 78. Form of notice. 
 Forms, No. 14. 
 
 Plaintiff's right to signjvdgment for portion not included in defence, see O. IX., 
 r. 8. 
 
 Within four days. — See O. LIL as to computation of time. 
 
 67. 
 
 18. The notice to be served as mentioned in the last prece- 
 ding Rule may be in the Form No. 14 in Appendix (B) hereto, 
 with such variations as circumstances may require. 
 
 See Eng. E. Sup. C, 0. XII., r. 22. 
 
 68. 
 
 19. Any person appearing to a writ of summons in other 
 cases may limit his defence to the question of the amount to 
 which the plaintiff is entitled, and in that case may in his ap- 
 pearance, or by notice served within 4 days thereafter, state 
 that he disputes only the amount claimed by the plaintiff; and 
 he need not file any further defence for the purpose of dis- 
 puting such amount ; and the plaintiff is to proceed as if the 
 defendant had filed a defence disputing the amount of the 
 claim. The notice disputing the amount of the claim may be 
 in the Form No. 15, in Appendix (B) hereto, with such varia- 
 tions as circumstances may require. 
 
 In this case, to the ordinary appearance should be added the words, " The defend- 
 ant insists that the amount due to the plaintiff is $ only," or " the defend- 
 ant insists that the amount due to the plaintiff is $ for principal and 
 3 for interest since the day of , etc., and no 
 more," or as the caae may be. See Form No. 77. 
 
 This clause appears to be partially based upon the Chancery practice in mort- 
 gage suits in which, in case the defendant disputed the amount claimed by the 
 plaintiff, he need not answer, but might file a disputing note as follows : "I dispute 
 the amount claimed by the plaintiff in this cause," and he was thereupon entitled 
 to four days' notice of the time appointed for settling the amount. See form of 
 indorsement of a bill in Schedule S., G. O. Chy., Taylor's Cons. Chy. Orders, p. 
 388. In Cattanach v. Urquhart, 6 Pr. R. 28, Blake, V. C, said :— " I am of 
 opinion that it is necessary to plead the Statute of Limitations in order that the 
 defendant may obtain the benefit of it. The 546th General Order of the Court 
 says, ' All defences are to be presented to the Court by demurrer or answer, or 
 both, according to circumstances.' Here the defendant proposes to raise that 
 which is a complete defence to the whole of the plaintiff's claim, and which, if 
 allowed as a defence, would shew them not intitled to any decree. I do not think 
 it was intended under the disputing note, which says merely, 'I dispute the 
 amount claimed by the plaintiff in this cause ' to aJlow such defences as that of 
 usury, of the Statute of Limitations, or the like to be raised. This notice points 
 merely to some error in the account of the plaintiff, and to an intention at the 
 proper time of disputing and resisting the claim as made. The authorities seem to 
 
 P 
 
 CD 
 
168 
 
 JUDICATURE ACT. 
 
 I t 
 
 h 
 
 :l ; 
 
 ll 
 
 0« Fill. shew clearly that such a defence as the present must be raised by answer, and 
 
 B. 19. 1 that when this has not been done, and the plaintiff obtains a decree for account, 
 
 the defendant cannot thereafter raise any questions save those of account ; at least 
 that he cannot raise after decree a defence which could be raised properly by 
 answer, and which when established defeats in toto the plaintiff's right to a decree. 
 Questions of account are properly postponed to the Master's office, but I take it 
 that where a bill is alio won to go pro confesso, and the defendant simply files a dis- 
 puting note, he must be deemed to have admitted sufficient to entitle the plaintiff 
 to a decree, and reserved to himself merely the right to reduce the amount of the 
 plaintiff's claim. See Penn i; Lockwood, 1 Gr. 547; Proudfoot v. Bush, 7 Gr., 
 618 ; Darby on Stats, of Limitations 439, '2 Dan. Pr. 1099. 
 
 In Wright v. Morgan, 24 Gr. 457, the defendant filed a disputing note and on 
 taking the account objected to the allowance of more than six years' arrears of 
 interest. The Master gave effect to the objection. On appeal this decision was 
 reversed, but the Court of Appeal (1 App. R. 613) upheld the Master, Burton, 
 J. A., saying : — " If the principal and interest secured by the mortgage had been 
 barred by the Statute of Limitations, and the defendant nad disputed the right of 
 the Court to make a decree against him at all, he must have raised that question by 
 answer, and the issue so raised would have been determined by the Court, render- 
 ing any reference unnecessary in the event of the issue being found in favour of the 
 defendant. But in a case like the present where the defendant has no disposition 
 to dispute the facts set forth in the bill, but, admitting the validity of the mort- 
 gage, disputes only the existence of a portion of the interest as a charge upon the 
 land, what issue could he raise by answer for the decision of the Court ? Whether 
 more or less is due upon the security is no answer to the prayer of the plaintiff's 
 bill, and the Court would take no evidence upon it, but would pronounce precisely 
 the same decree as was made here, referring it to the Master to find how much was 
 due for principal and interest on the mortgage security." 
 
 Proceed as if the defendant had filed a defence disputing the amount of the claim.— 
 The practice in Chancery in mortgage cases was to obtain a decree upon praecipe 
 notifying the defendant to attend at the taking of the accounts, either upon tne 
 settlement of the decree or in the Master's office as the case might be. That prac- 
 tice is, of course, inapplicable. Under O. XVII. r. 1 (a), if the defendant shall 
 not state that he does not require the delivery of a statement of claim, the plaintiff 
 shall, unless otherwise ordered by the Court or a Judge, deliver it withm three 
 months from the time of the deiendaut's entering his appearance, and under 0. 
 XXV. if the defendant does not deliver his defence the plaintiff may enter final 
 
 i'udgment. The rule says then that the plaintiff is to proceed as if the defendant 
 tad filed a defence. In mortgage cases, however, decrees on preecipe may yet be 
 obtained under O. IX., r. 10. 
 
 1 
 
 O.IX. 
 B. 1. 
 
 ORDER IX. 
 
 Default of Appearance. 
 
 69. 
 
 1. Where no appearance has been entered to a writ of sum- 
 mons for a defendant who is a person of unsound mind not so 
 found by inquisition, or judicial declaration in lieu of an inqui- 
 sition, the plaintiff may apply to the Court or a Judge for an 
 order that the official guardian or some other proper person be 
 assigned guardian of such defendant, by whom he may appear 
 and defend the action. 
 
 (a) But no such order shall be made unless it appears on the 
 hearing of such application that the writ of summons was duly 
 
DEFiULT OF APPEARANCE. 
 
 served, and that notice of the application was, after the expira- 
 tion of the time allowed for appearance, and at least 6 clear 
 days before the day in the notice named for hearing the ap- 
 plication, served upon, or left at the dwelling-house of, the per- 
 son with whom or under whose care such defendant was at the 
 time of serving such writ of summons. 
 
 See Eng. R. Sup. C, O. 13, r. 1; G. 0. Chy., No8. 519, 520; R. S. O., c. 40. 
 
 8.65. 
 
 In moving to have a guardian ad litem, appointed to a person of unsound mind, 
 it must be shewn that he has not been so found by inquisition, Crawfood v. Bird- 
 sail, 1 Ch. Ch. 70. On an application to appoint a guardian ad litem, to a person 
 alleged to be of unsound mind, not so found by inquisition, it is not sufficient 
 evidence of the fact of lunacy, that deponents swear that the person is of unsound 
 mind, or that they believe him to be so ; such facts should be shewn that the Court 
 may judge for itself whether the person is of unsound mind or not. It must also 
 be shewn that the projposed guardian has no interest conflicting with that of the 
 lunatic, Mclntyre v. Kmgsley, 1 Ch. Ch. 281. The Court will not, even at the re- 
 quest of the infant defendants in an amicable suit, appoint the plaintiff's solicitor 
 tneir guardian ad litem, James v. Robertson, 1 Ch. Ch. 197. Where a guardian 
 ad litem dies a new one may be appointed without notice. Harper v. Harper, 1 Ch. 
 Ch. 217. 
 
 ■' Duly served." — As to service upon lunatic, see 0. VI. , r. 6. 
 
 " Court or Judge." — See notes to O. IV. r. 1 (a). 
 
 "Official Guardian." — See sec. 66 of the Act. 
 
 "Six clear days." — As to computation of time see 0. LIL 
 
 70. 
 
 2. In case of an infant defendant, who has been served 
 with a writ of summons, otherwise than by the same being 
 served on the official guardian, if no guardian ad litem is ap- 
 pointed within 7 days after the time for appearance had 
 expired, the plaintiff may serve the official guardian with 
 notice of the said particulars; whereupon from the time 
 of such service the official guardian shall become and be the 
 guardian ad litem of the infant, unless and until the Court other- 
 wise orders ; and it shall be his duty forthwith to attend ac- 
 tively to the interests of the infant in the action, and for that 
 purpose to communicate with all proper parties, including the 
 father or guardian (if any) of the infant, and also the person with 
 whom or under whose care the infant resides, in case such person 
 is not the infant's father oi guardian ; and the guardian is to 
 make such other inquiries and take such other proceedings as the 
 interests of the infant may require. 
 
 See G. 0. Chy. 610, 611. 
 
 "Othei'wise than hy the sama being served on the official guardian." — The cases to 
 which these words apply seem to be actions for the recovery of money from an 
 infant personally, or of lands, goods, or chattels, of which he is personally in pos- 
 seasion, see 0. Vl,, r. 4. In such cases it is presumed that an application may be 
 made by any person asking to be appointed guardian, and in default then the 
 plaintiff may proceed by serving the official guardian. 
 
 " Within seven days."— Aa to computation of time, see O. LII. 
 
 169 
 
 o. ix. 
 
 R. 1. 
 
 
170 
 
 JUDICATURE ACT. 
 
 O. IX. 
 
 R. 3. 
 
 71. 
 
 3. Where any defendant fails to appear to a writ of summons 
 and the plaintiff is desirous of proceeding upon default of ap- 
 pearance under any of the following Rules of this Order, or 
 under Order 11, Rule l,he shall, before taking such proceeding; 
 upon default, file an affidavit of service, or of notice in lieu of 
 service, or the undertaking of the defendant's solicitor accepting 
 service and agreeing to enter an appearance, with an affidavit 
 verifying the undertaking filed, as the case may be. 
 
 See Eng. R. Sup. C, O. XIIL, r. 2. 
 
 "Or the undertaking, etc." — These words are not in the English Act, and the 
 procedure under it is to apply for an attachment against the solicitor. That 
 practice is available under the present rules, see 0. v III. r. 11, and see notes to 
 0. VI. r. 1. 
 
 " Order II. r. 1." — This refers to cases of ordinary account, when the plaintiff 
 desiring an account to be taken, has indorsed his writ of summons, to that effect, as 
 provided by Ord. III. r. 6. The plaintiff may without special leave, serve notice 
 of motion or other notice, petition, or summons, upon any defendant, duly served 
 with a writ, who has not appeared within the time limited, 0. XLVII. r. 7. 
 
 "An affidavit verify ing."--'Under the Chancery practice it was not necessary 
 to verify the signature of the solicitor ; see as to this, notes to O. YI. r. 1. 
 
 12. 
 
 4. In case of non-appearance by the defendant where the 
 writ of summons is specially indorsed under Order 3, Rule 4 
 the plaintiff may sign final judgment for any sum not exceed- 
 ing the sum indorsed on the writ, together with interest at the 
 rate specified, if any, lo uhe date of the judgment, and a sum 
 for costs, and the plaintiff may, at the expiration of 8 days 
 from the last day for appearance, and not before, issue execu- 
 tion upon such judgment ; but it shall be lawful for the Court 
 or a Judge to set aside or vary such judgment upon such terms 
 as may seem just. 
 
 See Eng. R. Sup. C, O. XIII., r. 3 ; R. S. 0., c. 50, s. 64 ; Eng. C L. P. Act of 
 1852, s. 27. 
 
 " Non-appearance." — If there is an appearance proceeaingB may be taken under 
 
 "Specially indorsed." — See notes to 0. III., r. 4. 
 
 If the writ be not specially indorsed, but the case is one in which it might have 
 been so, the judgment is signed under 0. IX., r. 6. The only distinction in the 
 forms of the judgments is that under r. 4 the costs are fixed by the judgment— "a 
 sum for costs," whereas under r. 6 the judgment is for " costs to be taxed," see the 
 forms Nos. 148 and 147. 
 
 " Eight days." — As to computation of time see 0. LII. 
 
 " Court or a Judge." — See notes to 0. IV., r. 1 (o). 
 
 " To set (Mide."-See also 0. XXV., r. 12. 
 
 For cases in which a judgment will be set aside and upon what terms, see Rob- 
 inson V. Joseph's Digest, 1931 et seq. 
 
DEFAULT OF APPEARANCE. 
 
 171 
 
 73. 
 
 6. Where there are several defendants to a writ specially •• 'x. 
 indorsed for a debt or liquidated demand in money under *• *• 
 Order 3, Rule 4, and one or more of the defendants appear to the 
 writ and others of them do not appear, the plaintiff may enter 
 final judgment against such as have not appeared, and may 
 issue execution upon such judgment, without prejudice to his 
 right to proceed with his action against such as have appeared. 
 
 See Eng. R. Sup. 0., O. XIII., r. 4; R. S. 0., c. 50, s. 69; Eng. C. L. P. Act 
 of 1852. 8. 33. 
 
 This is a variation of the provision in the Common Law Procedure Act, R. S. 
 0., 0. 50, B. 69 ; by which, if the plaintiff issued execution upon the judgment signed 
 against one or more of the defendants who did not appear, he was to be taken to 
 have abandoned his action agaii^st the defendant or defendants who did appear. 
 
 74. 
 
 6. Where the defendant fails to appear to the writ of sum- 
 mons and the writ is not specially indorsed, but the plaintiff's 
 claim is for a debt or liquidated demand only, no statement of 
 claim need afterwards be delivered, but the plaintiff may file an 
 affidavit of service of the summons, or of notice in lieu of service, 
 as the case may be, and file and serve a statement of the par- 
 ticulars of his claim in respect of the causes of action stated in 
 the indorsement upon the writ, and may, after the expiration 
 of 8 days, enter final judgment for the amount shewn there- 
 by, and costs to be taxed, provided that the amount shall not 
 be more than the sum indorsed upon the writ, besides costs. 
 
 See Eng. R. Sup. C, O. XIII.,.r. 5; R. S. 0., c. 50, s. 65; Eng. C. L. P. Act 
 of 1852, 8. 28. 
 
 "Specially indorsed." — This means under O. III., r. 5. 
 
 "File anaffidavit of service." — The words "or the undertaking, etc.," which have 
 in r. 3 of this Order, been added to the corresponding English rule, should have 
 been inserted here also. Their omission lea/es a conflict between the two rules. 
 
 "File and serve."— The English rule requires filing only. The present rule 
 appears to be inconsistent. It provides that " no statement of claim need after- 
 wards be delivered," but requires the plaintiff to serve " a statement of the particu- 
 lars of his claim." 
 
 " Costs to be taxed."— 8m notes to rule 3 of this Order. 
 
 As to setting aside judgments, see O. XXV., r. 12. 
 
 For form of judgment see Form No. 147. 
 
 (a) In such case the plaintiff is not to be entitled to the 
 costs of the statements of the particulars of his claim, unless 
 the taxing officer is notified that there was good reason for not 
 specially indorsing the writ, so as to render unnecessary filing 
 and serving such statements. 
 
 This provision is taken from R. S. 0. c. 60, s. 66, and the Intended meaning is 
 reasonably apparent. 
 
 s 
 
 0} 
 
 mi 
 
172 
 
 o. ix. 
 
 B. 7. 
 
 
 
 
 f . >.i 
 
 ...ijni! 
 
 ' ■ . i 1 
 
 JUDICATURE ACT. 
 
 76. 
 
 7. Where the defendant fails to appear to the writ of sum- 
 mons and the plaintiffs claim is not for a debt or liquidated 
 demand only, but for detention of goods and pecuniary 
 damages, or either of them, no statement of claim need be 
 delivered, but interlocutory judgment may be entered, and 
 the value of the goods and the damages, or the damages only, 
 as toe case may be, in respect of the causes of action dis- 
 closed by the indorsement on the writ of summons shall be 
 assessed as hitherto, or at the County Court of the County in 
 which the action is brought if the solicitors for all parties 
 reside in such County ; or the High Court or a Judge thereof, 
 may order that the value and amount of damages, or either of 
 them, shall be ascertained in any other way in which any 
 question arising in an action may be tried. 
 
 See Eng. R. Sup. C, O. XIII., r. 6 ; R. S. O. c, 50, s. 152 ; Eng. C. L. P. Act of 
 1852, Bs. 28, 94. 
 
 This rule applies to cases (1) for the detention of goods, and (2) of pecuniary dam- 
 ages. 
 
 For form of interlocutoiy judgment, see Forms, Xo. 152. For judgment after 
 assessment of damages, see Forms, No. 154. 
 
 "AsMSted as hitherto," R. S. O., c. 50, s. 152, is as follows :— No writ of inquiry 
 shall issue to a sheriff in cases of judgment by default, but, except in cases where 
 the judgment is final as aforesaid, the damages when to be assessed by a Judge, or 
 jury shall be ascertained at the same time, and in like manner as if the parties had 
 pleaded to issue, and the entries shall be made on the roll accordingly. 
 
 " Court or a Judge." — See notes to 0. IV., r. 1 (a). 
 
 " Any other woy."— Under 0. XXIX., r. 1, the Court or a Judge may, at any 
 stage of the proceedings in a cause or matter, direct any necessary inquiries or 
 accounts to be made or taken, notwithstanding that it may appear that there is 
 some special or further relief sought for, or special issue to be tried, as to which it 
 may be proper that the cause or matter should proceed in the ordinary manner. 
 
 See also sec. 63 of the Act and O. XXXI., r. 23. 
 
 76. 
 
 8. In case no appearance shall be entered in an action for 
 the recovery of land, within the time limited for appearance, 
 or if an appearance be entered but the defence be limited to 
 part only, the plaintiff shall be at liberty to enter a judgment 
 that the person whose title is asserted in the writ shall recover 
 possession of the land, or of the part thereof to which the 
 defence does not apply. 
 
 See Eng. C, O. XIII., r. 7; R. S. 0. c. 51, s. 20; Eng. C. L. P. Act of 1852, 
 B. 177. 
 
 " Defence be limited,"- 
 and Forms, Nos. 14, 78. 
 
 The judgment can only be for recovery of possession of the land, and not fo 
 costs. White v. Cochlin, 2 Pr. R. 249 ; Haskins v. Cannon, lb. 334 ; Bleecker v. 
 Campbell, 4 U. C. L. J. 136. But the costs may be recovered in an action for 
 mesne profits. Smith v. Tett, 9 Ex. 307 ; and see now as to costs in case of default 
 in appearance, R. S. 0. c. 51, s. 20, s.-s. 2. 
 
 -As to limiting defence, see 0. YIII. r. 17 and notes, 
 

 DEFAULT OF APPEARANCE. 
 
 77. 
 
 178 
 
 9. Where the plaintiff has indorsed a claim for mesne profits, •• 
 arrears of rent, or damages for breach of contract, upon a writ " 
 for the recovery of land, he may enter judgment as in the last 
 preceding Rule mentioned, for the land ; and may proceed as 
 in the other preceding Rules of this order, as to such other 
 claim 80 indorsed. 
 
 See Eng. R. Sup. C, O. XIII., r. 8 ; R. S. 0., c. 61, 8. 70; Eng. C. L. P. Act 
 of 1856, 8. 257. 
 
 No cause of action shall, unless by leave of the Court or a Judge, be joined with 
 an action for the recovery of land, except in respect of mesne profits, or arrears of 
 rent in respect of the premises claimed, or any part thereof, and damages for 
 breach of any contract under which the same or any part thereof are or is held, 
 0. XIII., r. 2. 
 
 If the defendant after appearance makes default in pleading, the plaintiff may 
 proceed undsr O. XXV. r. 8. 
 
 " Mesne Profits." — R. S. O., o. 51, s. 70, enacts that wherever it appears on the 
 trial of an ejectment at the suit of a landlord a^^ainst a tenant, that the tenant or 
 his attorney has been served with due notice of trial, the Judge before whom the 
 cause comes on to be tried, nhall (whether the defendant appears upon the trial or 
 not) permit the plaintiff, after proof of his right, to recover possession of the whole 
 or any part of the premises mentioned in the writ, to go into evidence of the 
 mesne profits thereof which have, or might have, accrued from the day of the 
 expiration or determination of the tenant's interest in the same, down to the time 
 of the verdict given in the cause, or to some preceding day to be specially mentioned 
 therein ; and if on the trial a verdict is found for the plaintiff, the same shall be 
 given upon the whole matter both aa to the recovery of the whole or any part of 
 the premises, and also as to the amount of the damages to be paid for such mesne 
 profits ; and in such case the landlord shall have judgment within the time herein- 
 before provided, not only for the recovery of possession of costs, but also for the 
 mesne profits so found ; and the landlord may, after the verdict, bring an action 
 for the mesne profits which accrue from the time of the verdict, or from the day 
 Bo specified therein down to the day of the delivery of possession of the premises 
 recovered in the ejectment. 
 
 IX. 
 
 9. 
 
 78. 
 
 10. Where the action is in respect of a mortgage, and the 
 plaintiff claims foreclosure or sale or redemption, or where the 
 action is for the administration of an estate, or for a partition, the 
 plaintiff shall be entitled to a judgment or order on prcecipe to 
 the Registrar, Deputy-Registrar, Local Registrar, or Clerk or 
 Deputy-Clerk of the Crown and Pleas, as the case may be, on 
 such evidence (if any) and in such cases (as nearly as may be), 
 as provided for by the present practice of the Court of Chan- 
 cery in that behalf. 
 
 As to mortgage suits, see O. 0. Chy. 426 et seq., 645 et teq., post. 
 
 Aa to administration suits, see G. O. Chy. 467 et seq., 638 et teq., post. 
 
 As to partition suits see, 6. O. Chy. &38etuq., post. 
 

 174 
 
 JUDICATURE ACT. 
 
 79. 
 
 o. IX. 11. Where the action is for the foreclosure or redemption of 
 
 B. II. a mortgage, or sale of mortgaged premises, if the plaintiff is not 
 
 entitled lO a judgment or order on prcecipe, or would not 
 according to the practice of the Court of Chancery be entitled 
 on prcBcipe to such a judgment or order as he desires, he shall 
 be entitled to the proper judgment or order, on notice or other- 
 wise, according to the practice of the Court of Chancery where 
 a cause is heard on an order to take the bill pro confesso or 
 otherwise. 
 
 As to mortgage suits, see G. 0. Ohy. 426 et aeq., 645 et seq., pott. 
 
 O. X. 
 B, 1. 
 
 ORDER X. 
 Leave to Sign Judgment where Writ specially Indorsed. 
 
 80. 
 
 1. Where the defendant appears to a writ of summons spe- 
 cially indorsed, under Order 3, Rule 4, and the plaintiff is not 
 entitled to a judgment or order, under the preceding Order, he 
 may, on an affidavit made by himself, or by any other person 
 who can swear positively to the debt or cause of action, veri- 
 fying the cause of action, and stating that in his belief there is 
 no defence to the action, serve the defendant with a notice of 
 motion to shew cause before the Court or a Judge why the 
 plaintiff should not be at liberty to sign final judgment for the 
 amount so indorsed, together with interest, if any, and costs. 
 A copy of the affidavit shall accompany the notice of motion. 
 The Court or a Judge may thereupon, unless the defendant, by 
 affidavit or otherwise, satisfy the Court or a Judge that he has 
 a good defence to the action on the merits, or disclose such 
 facts as may be deemed sufficient to entitle him to defend the 
 action, make an order empowering the plaintiff to sign judg- 
 ment accordingly. 
 
 See Eng. R. Sup. C, 0. XIV., r. 1 ; Eng. R. Sup. C, May, 1877, r. 3. 
 
 Specially indorsed. — A writ of summons was' indorsed as follows : — " The plain- 
 tiff's claim is £49 5s. 8d. The following are the particulars." It then went on 
 " To goods," with dates and amounts, and, after givmg credit for certain payments, 
 stated the balance due to be £49 6s. 8d. : — Held a sufficient indorsement under 0. 
 III. r. 4, to entitle plaintiff to sign judgment under this Order, and that the in- 
 dorsement was not vitiated by the mention therein of a banker's draft which had 
 been given as payment, but was dishonoured, and in respect of which no claim was 
 made. Smith v. Wilson, L. R. 4 C. P. D. 392. 
 
LEAVE TO SIGN JUDGMENT. 
 
 The writ of summonB in an action waa indorsed as follows :— "The plaintiflf's O. X. 
 claim is £399 9i. ''(!., the defendant's share or contribution to the iiayment of n, |, 
 certain bills of exchange and promiHHory notes on which he and the plaintiffs were 
 jointly liable, and which bills and notes have been taken up by the plaintiffs " : — 
 Held that this indorsement did not constitute a good "special indorsement" under 
 O. III. r. 4, and therefore that a judgment which had been signe«l under this rule 
 must be set aside, Wallcer v. Hicks, L. R. 3 Q. B. D. 8. 
 
 See also notes to O. III., r. 4. 
 
 "Anj/ other person."— The rule differs from the original Eng. 0. XIV., r. 1, in 
 allowing the affidavit to be made not merely by the plaintiff out by "any other 
 person who can swear positively to the debt or cause of action." In England it 
 was necessary that the affidavit should be made by the plaintiff himself, i rederici 
 V. Vanderzee, L. R. 2, C. P. D. 70. And where the plaintiffs were a cornoration 
 an order could not be obtained calling upon the defendant to shew cause wny judg- 
 ment should not be signed, for an affidavit from an officer of the corporation was 
 not sufficient. Bank of Montreal v. Cameron, L. R. 2 Q. B. D. 536 ; and see notes 
 toO. III., r. 4. 
 
 Whei'e defendant is a corporation. — The plaintiff may apply under this rule 
 although the defendants are a corporation, Shelford v. 1 he South and East Coast 
 Rail. Co., L. R. 4 Ex. D. 317 ; Muirhead v. The Direct United States Cable Co. 
 (Limited), 27 W. R. 708. 
 
 " Notice of motion to shew cause before the Court or a Judged' — Can the motion be 
 made before the master in Chambers, or to a County Court Judge or local Master. 
 As to the effect of the words " Court or a Judge," see notes to O. IV., r. 1 (a). 
 The application is to be made on notice of motion and not by summons. Now all 
 applications to the Court or a Judge are to be by notice of motion and not by sum- 
 mons (O. XLVII., rr. 1 & 2), all aimlications to the Master in Chambers are to 
 be made in the same way (O. XLVIII., r. 1) and " Every applicati(m to a County 
 Court Judge or local Master under the Act or these rules shall, where notice of the 
 application is necessary, be made in a summary way by summons " (O. XLIX., r. . 
 11). The authors are unable to do more than merely call attention to these rules. 
 
 Material for application. — The affidavit must be, (l)of some one who can swear 
 positively ; (2) it must verify the cause of action ; and (3) state that m his belief 
 there is no defence to the action. An application that the defendant may be called 
 upon to shew cause why final judgment should not be signed, must be made on an 
 aWdavit that in the plaintiff's belief there is no defence to the action, Frederici v. 
 Vanderzee, L. R. 2 C. P. D. 70. 
 
 The making of the affidavit required is not a condition precedent to the issue of 
 the summons for leave to sign final judgment. So that, where the plaintiff made a 
 defective affidavit, then obtained his suir.inons, and afterwards swore a fresh and 
 good affidavit, it was held that the issue of the summons was good, and leave to 
 sign final judgment was given, Begg v. Cooper, 40 L. T. N. S. 29. 
 
 Answer to the Application. — If the defendant makes an affidavit and goes beyond 
 the bare statement that he has a defence on the merits, and gives reasons for think- 
 ing that the defence is substantial, he ought not to be compelled to pay money into 
 Court as a condition of his being let in to defend, Runnacles v. Mesquita, L. R. 1 
 Q. B. D. 416 ; and see remarks of Cotton, L. J., in Ray v. Barker, L. R. 4 Ex. D. 
 279. The Court or a Judge may, in their or his discretion, allow the plaintiff to 
 file an affidavit in reply to the defendant's affidavit, Davis v. Spence, L. R. 1 0. P. 
 D. 719, and Girvin v. Grepe, L. R. 13 Ch. D. 174; overruling North Central 
 Waggon Company v. North Wales Waggon Company, 39 L. T. N. S. 628. 
 The point agam, however, came up in Rotheram v. Priest, 41 L. T. N. S. 558, 
 when Grove, J., said : — "As regards the admissibility of affidavits in reply it 
 seems to me to have been treated as a matter of discretion. It was so treated 
 in the case of Davis v. Spence, where it was held that the learned Judge had 
 exercised a sound discretion in admitting them, and not that the Court were 
 bound to hear them in all cases. There may be cases where the Court may 
 allow affidavits in reply to be used ; but I think in deciding as we do we are acting 
 within the authority or decided cases. The practice would lead to the very incon- 
 venient result that we should be trying cases on affidavit alone." And Lopez, J., 
 said : — "I agree with the decision in the North Central Waggon Company v. North 
 Wales Waggon Company, though I can imagine circumstances in which an affi- 
 davit in reply might be desirable. But as a general rule the affidavit of the de- 
 fendant is the last thing that should come under the notice of the Judge. If it be 
 otherwise, he would be really trying the case on the affidavits." 
 
 176 
 
 ^ 
 
 ^ 
 
176 
 
 JUDICATURE ACT. 
 
 O. X. DUeretion of Court.— In B.&y v. Baker, L. R. 4 Ex. D. 279, Bramwell, L. J., 
 
 R. 1. said : — " Order XIV. (Ont. 0. A.) no doubt contains useful provisions ; it improves 
 
 the procedure very much in actions for debts, where there is really no defence ; for 
 it saves the expense attending the formality of a trial at which perhaps the de- 
 fendant will not appear. Nevertheless it is a remedy which ought not to be used 
 except where the plaintiff's case is clear : if there be any doubt as to the right to 
 recover, he ought not to be allowed to avail himself of a process so summary in its 
 nature. By the first rule of 'Order XIV. (Ont. O. X.) an order majr be made 
 empowering the plaintiff to siu^n judgment in an action where the writ has been 
 specially indorsed, but this rule is to be read subject to the sixth rule, which pro- 
 vides that leave to defend may be given either unconditionaUy or upon terms." 
 And Cotton, L. J., said: — "1 think that the power conferred by Order XIV. 
 (Ont. O. X.) ought to be used carefully, and that we ought to consider whether 
 in the present case an order ought to have been made. If the defendant's affidavit 
 sets up a good defence, the Court has no discretion, and cannot order the money 
 claimed to be paid into Court. But an alternative is allowed in whicb leave to 
 defend may be given, ramely, where the defendant discloses 'such facts as may be 
 deemed sufficient to entitle him to defend ' ; and it is this state of facts to which 
 the discretionary power given by the sixth rule is directed. The affidavit may not 
 make it clear that there is a defence, but the defendant may be able at the trial 
 to establish a bona fide defence." 
 
 The power given to a Court or Judge to allow the plaintiff to sign final judgment 
 under this order is intended to be exercised when it is shewn, either from the ac- 
 knowledgment of the debt by the defendant or from other circumstances, that the 
 defence would be for mere purposes of delay. In an action against a surety on a 
 specially indorsed writ it was not shewn that the debt had been acknowledged by 
 the principal debtor, or that particulars had been furnished to the defendant, or 
 that he had admitted his liability, it was held that the defendant might reasonably 
 call on the plaintiff to prove his claim, and should be allowed to defend without 
 paying money into Court or giving security, Lloyd's Banking Co. (Limited) v. 
 Ogle, li. R. 1 Ex. 262 ; see this case distinguished, Anglo-Italian Bank v. Wells, 38 
 L. T. N. S. 197. The defendant, if he make no affidavit of merits, is not entitled 
 as a matter of right to defend the action upon offering to bring the sum into Court. 
 A discretion is vested in the Judge to decide whether, upon considering the other 
 facts of the case, the defendant's offer is a sufficient ground for refusing the plain- 
 tiff's application, Crump v. Cavendish, L. R. 5, F .. D. 211. 
 
 Oriental Bank v. Fitzgerald, W. N. (1880) 119 ; 43 L. T. N. S. 80, was an action 
 recover a sum of £2,500. The defendant had been a customer of the plaintiffs' 
 oank. A balance was struck in August, 1872, and the defendant had subsequently 
 pi^id sums by which he recognized that balance as correct. He now disputed its 
 cor cctness, but admitted that he owed the plaintiffs about £1,500. The defendant 
 helc <vs security a policj', the surrender value of which was between £1,400 and 
 £1,500. A summons having been taken out under Rules of Court, 1876, Order 
 XlV. (Ont. 0. X. ) a Judge at Chambers allowed the defendant to defend upon pay- 
 ment of £2,000 into Court. The Exchequer Division upon appeal gave leave to 
 defend upon payment of £1,500. The defendant appealed. The Court (Bramwell, 
 Baggallay, and Brett, L. JJ.) dismissed the appeal. And see also Berridge v. 
 Roberts, W. N. (1876)86; Thome v. Seel, W. N. (1878) 215; Thompsons. Mar- 
 shall, W. N. (1879) 213; Harrison v. Bottenheim, 26 W. R. 362 ; Hanmer v. Flight, 
 36 L. T. N. S. 279. 
 
 In a doubtful case the application might, under 0. XXXVI. r. 9, be turned 
 into a motion for judgment or the hearing of the cause. 
 
 Appeal from Ordei: — The order is an interlocutory order and appealable as such 
 only. Standard Discount Co. v. La Grange, L. R. 3 C. P. D. 67. The order being 
 discretionary will not he lightly overruled, Papayanni v. Coutpas, W. N. (1880) 109. 
 
 ForvM.—'Eat form of order allowing plaintiff to sign judgment, see Forms, No. 
 115. 
 
 For form of order allowing defendant to defend unconditionally, see Forms, 
 No. 116. 
 
 For form of order allowing defendant to defend on payment into Court, see 
 Forms, No. 117. 
 
 For form of order allowing defence as to part on payment into Court and as to 
 residue unconditionally, see Forms, No. 118. 
 
LEAVE TO SIGN JUDGMENT. 
 
 177 
 
 For form of judgment uuder an order made under this rule, see Forms, No. 153. O, X 
 
 For form of judgment where leave had been given to sign judgment unless some **• *• 
 condition should be complied with, see Forms, No. 161. 
 
 For form of judgment where leave had been given to sign judgment unless 
 money paid into Court, see Forms, No. 162. 
 
 81. 
 
 2. The application by the plaintiff for leave to enter judg- 
 ment under the last preceding Rule shall be made on notice 
 returnable not less than 2 clear days after service. 
 
 See Eng. K. Sup. C, 0. XIV., r. 2. 
 
 " On notice."— The affidavit must accompany the notice. See preceding rule. 
 
 " Ttoo clear days." — As to computation of time, see O. LII. 
 
 82. 
 
 3. The defendant may shew cause agaiast such application 
 by offering to bring into Court the sum indorsed on the writ, 
 or by affidavit. In such affidavit he shall state whether the 
 defence he alleges goes to the whole or to part only, and 
 if so, to what part, of the plaintiffs claim. And the Judge 
 may, if he thinks fit, order the defendant to attend and be ex- 
 amined upon oath ; or to produce any books or documents or 
 copies of or extracts therefrom. 
 
 See Eng. R. Sup. C, O. XIV., r. 3. 
 
 See notes to rule 1 of this Order. 
 
 If a defendant fulfilling the condition of one Order under rule 1 of the Order 
 by which he was allowed to defend an action, has brought money into Court, and 
 the final judgment of a Divisional Court be afterwards entered for him, he is there- 
 upon entitled to the return of the money, although notice of appeal against the 
 judgment may have been given by the plaintiff, Yorkshire Banking Co. (Limited) 
 V. Beatson & Mycock, L. R. 4 C. P. D. 213. 
 
 r 
 3 
 
 -1 
 
 S'S. 
 
 4. In any case if it appears that the defence set up by the 
 defendant applies only to a part of the plaintiffs claim, or that 
 any part of his claim is admitted to be due, the plaintiff shall 
 liave judgment forthwith for such part of his claim as the defence 
 does not apply to or as is admitted to be due, subject to such 
 terms, if any, as to suspending execution, or the payment of 
 any amount levied or any part thereof into Court by the 
 sheriff, the taxation of costs, or otherwise, as the Judge may 
 think fit. And the defendant may be allowed to defend as to 
 the residue of the plaintiff's claim. 
 
 See Eng. Sup. C, O. XIV. r. 4. 
 
 12 
 
 m 
 
178 
 
 JUDICATURE ACT. 
 
 :, 
 
 O. X. When upon shewing cause against an application for leave to sign final judg- 
 
 2, 4, ment, the defendant's affidavit admits part of the claim to be due, and discloses a 
 
 defence upon the merits as to the residue, there is no power under this rule to 
 require the defendant to pay to the plaintiff the amount admitted to be due, as a 
 condition of being allowed to defend as to the residue. The proper order is that 
 the plaintiff have judgment for the amount admitted, the defendant to be at liberty 
 to defend as to the residue, Dennis v. Seymour, L. R. 4 Ex. D. 80. 
 
 For Form of order giving leave to defend as to part on payment into Court, 
 and as to residue unconditionally, see Forms No. 118. 
 
 
 84. 
 
 5. If it appears to the Judge that any defendant has a good 
 defence totheaction,or ought to be permitted todefend theaction, 
 and that any other defendant has not such defence and ought not 
 to be permitted to defend, the former may be permitted to 
 defend, and the plaintiff shall be entitled to enter final judg- 
 ment against the latter, and may issue execution upon such 
 judgment without prejudice to his right to proceed with his 
 action against the former. 
 
 See Eng. R. Sup. 0., 0. X., r. 5. 
 
 " Good defence." — See notes to 0. X., r. 1. 
 
 "Execution, cfc."— See similar words in O. IX., r. 5; and see as to meanint oi 
 • "execution," O. XXXVIII., r. 6. 
 
 85. 
 
 6. Leave to defend may be given unconditionally, or subject 
 to such terms as to giving security, or otherwise, as the Court 
 or a Judge may think fit. 
 
 See Eng. R. Sup. C, 0. XIV.,';r. 3 ; see notes to preceding rules. 
 
 ORDER XI. 
 
 Application for Account, &c., where Writ indorsed under 
 
 Order III., Rule 6. 
 
 O. XI. 
 B. 1. 
 
 86. 
 
 1. In default of appearance to a writ indorsed under Order 
 3, Rule 6, and after appearance in a case in which the prece- 
 ding Orders do not entitle the plaintiff to a judgment or order 
 on praecipe or otherwise, then unless the defendant, by affidavit 
 or otherwise, satisfy the Court or a Judge that there is some 
 preliminary question to be tried, an order for the account 
 claimed, with all directions now usual in the Court of Chan- 
 cery in similar cases, shall be forthwith made. 
 
 i 
 
APPLICATION FOR ACCOUNT. 
 
 179 
 
 See Eng. R. Sup. C, O. XV., r. 1; G. 0. Chy., No. 457, et seq.; R. S. O., & 50, O. XI 
 88. 189-197; Imp. Act, 15 & 16 Vic, c. 86, bb. 45, 47. B. 1. 
 
 " Indorsed under 0, III., r. 7." — In all cases of ordinary account, as, for instance, 
 in the case of partnership, or executorship, or ordinary trust account, where the 
 plaintiff desires to have an account taken in the first instance, the writ of summons 
 shall be indorsed with a claim that such account be taken, O. III. r. 7. 
 
 Form of order. — Where an order for preliminary accounts is obtained under this 
 rule, after issuing the writ of summons in a foreclosure action, and after simple 
 appearance to the writ by the defendant, the order should not prejudice the trial of 
 any issues which might be raised by the pleadings subsequently delivered, by 
 inserting, as of common form, the words, "and the Judge not requiring any triaJ 
 of the action other than this application, Gath v. Webster, L. R. 12 Ch. D. 771. 
 
 "Default of appearance."— In case an appearance has been entered a decree 
 might be obtained under O. XXXVI. r. 10. 
 
 "Judgment or order on praecipe." — See 0. IX. r, 10. 
 
 " By affidavit." — It is said that the corresponding English rule authorizes the 
 useof affidavits to prove any matter required on further directions as to costs, 
 Beavey v. Elliott, W. N. (1880) 99. 
 
 " Court or a Judge." — See notes to O. IV. r. 1 (a). 
 
 " With all directions now usual." — (1) Partnership. The usual decree in cases of 
 partnership merely directs one of the Masters to take the accounts and ascertain 
 the credits, property and effects outstanding, and reserves further directions and 
 costs, Seton on Dec. (4th ed.) 1199. (2) Executorship account. See G. O. Chy. 467, 
 et seq. post. 
 
 87. 
 
 2. An application for such order as mentioned in the last 
 preceding Rule shall be made on notice, and be supported 
 by an affidavit filed on behalf of the plaintiff, stating concisely 
 the grounds of his claim to an account. The application may 
 be made at any time after the time for entering an appearance 
 has expired. 
 
 See Eng. R. Sup. C, O. XV., r. 2. 
 
 " On notice." — Before whom ? See notes to O. X. r. 1. 
 
 88. 
 
 3. But the preceding 2 rules are not to prevent orders 
 for the administration of the estate real or personal of a 
 deceased person, or for the partition or sale of an estate from 
 being obtained on motion without any previous notice or 
 other preliminary proceeding, and in the manner provided for 
 by the General Orders of the Court of Chancery in that 
 behalf. 
 
 See G. 0. Chy. 467, ct seq. post. 
 
 m 
 
 M' I. 
 
i^m 
 
 180 
 
 ■I 
 
 i 
 
 •.xu. 
 
 S.1 
 
 JUDICATURE ACT. 
 
 OKDER XII. 
 Parties. 
 
 89. 
 
 1. All persons may be joined as plaintiffs in whom the 
 right to any relief claimed is alleged to exist, whether jointly, 
 severally, or in the alternative. And, without any amendment, 
 judgment may be given for such one or more of the plaintiffs 
 as may be found to be entitled to relief, for such relief as he 
 or they may be entitled to. But the defendant, though un- 
 successful, shall be entitled to his costs occasioned by so 
 joining any person or persons who shall not be found entitled 
 to relief, unless the Court in disposing of the costs of the 
 action shall otherwise direct. 
 
 See Eng, R. Sup. C, 0. XVI., r. 1 ; R. S. O., c. 49, s. 5. 
 
 This is an important innovation on former practice, and is a material extension 
 of the previous practice, either in the Courts of Law or Equity. 
 
 The principles upon which the Courts have heretofore acted (irrespective of 
 the Ad. of Jus. Act, R. S. 0., c. 49) are well stated in Wilson's Judicature Acts, 
 at pages 173, 174 : " Subject to a few exceptions, the Common Law Courts were 
 rigidly tied down to disposing of claims arising between exactly the same parties 
 upon each side, and in the same rights. They could give a judgment for A gainst 
 C^ or against C, D and E, but they could not give relief of one sort against C, and 
 of another sort against D and E ; nor could they give relief of one kmd to A, and 
 of another kind to B, or of one kind to A and B jointly, and another to A separ- 
 ately. All the plaintiffs, if more than one, had to be jointly entitled, and all the 
 defendants jointly liable, with respect to everv single matter upon which the Court 
 was asked to adjudicate. In Chancery, on tne other hand, the course was to deal 
 with the controversy or transaction forming the subject matter of the action as a 
 whole, and endeavour to do complete justice with respect to it ; and for that object 
 the Court insisted on all the parties interested in the subject matter being brought 
 before it. The extreme strictness of this rule ban been usefully relaxed from time 
 to time in ways which, at this point, it is not necessary to specify, but in the main 
 it has not been departed from. The result has been that a Court of Law could not 
 handle the matter as a whole, however desirable it might be to do so ; but ww 
 obliged to confine itself to the specific claim of one person against another. A 
 Court of Equity could only deal with the matter as a whole, whether that were 
 really necessary or not, and could not dispose of the mutual rights of particular 
 persons singly, however convenient it might be to do so. 
 
 Rules 1 and 3 of this Order may be consi-^ered together. By the latter "all 
 persons may be joined as defendants against whom the right to any relief is alleged 
 to exist, whether jointly, severally, or in the alternative." Observe the words (1) 
 
 »iiy,(3)r 
 
 jointly, (2) several! 
 
 I alternative. 
 
 (1) Jointly. — Plaintiffs jointly interested could formerly unite in bringing an 
 action against defendants jointly liable. 
 
 (2) Severally.— Tioes this word permit two plaintiffs who have distinct and differ- 
 ent causes of action against the same defendant, or various defendants, to unite 
 them all in one action ? In Booth y, Briscoe, L. R. 2 Q. B. D. 496, the plaintiffs were 
 trustees of a charity, and conceiving that language published by the defendant WM 
 libellous as against them, united in bringing one action for damages. Prior to the 
 Judicature Act this could not have been done, and in discussing the effect of the 
 Act, Bramwell, L. J., said : — "The only remaining matter was a doubt I had 
 suggested, whether these eight plaintiffs, if they had any cause of action, had not 
 
PARTIES. 
 
 «ight separate causes of action, and whether they could be joined as plaintifiFs. I 
 am still of opinion that they had eight causes of action, and that they might have 
 brought eight actions ; and the question is whether under the Judicature Act any 
 difference has been made so that they can bring cue action. Where a tort has been 
 done the tort is a separate tort to each man who complains. If, indeed, there were 
 a joint tort, for instance slander of several persons in partnership, the persons 
 injured could have joined and maintained the action, but could have maintained it 
 for the joint damage only. Here there is no joint damage. Each of the plaintiffs, 
 if there is a libel, has been separately libelled. There is no doubt, therefore, that 
 prior to the Judicature Act this proceeding would have been erroneous ; but it 
 seems to us i>hat under Order XVI., r. 1, (Ont. XII. 1) these plaintiffs may well 
 join as plaintiff's [reads the rule]. Now it seems to me that that word 'severally ' 
 must comprehend the present case. I think, therefore, that they may very well 
 join." 
 
 It must be observed that the point was one not necessary for the determination 
 of the appeal, and was raised by the learned Judge, whose language has just been 
 quoted, and was not fully argued at the bar. It must, however, oe of much weight. 
 
 181 
 
 o. xn. 
 
 B.1. 
 
 follows that the very widest liberty as to joinder of actions and parties was intended. 
 For if eight persons can, under the one rule, by virtue of the word " severally, "bring 
 eight separate and distinct actions against the same defendant in the same action, they 
 can, under the other rule, by virtue of the same word, bring such actions against any 
 number of defendants, and that, therefore, A could sue. Y upon a bill of exchange, and 
 M for breach of contract; 6 can sue N for assault, and K fur libel; C can sue in trover 
 and so on, all in one and the same action. By this reductio ad absurdum they 
 question the correctness of the decision, and suggest this construction : — "Where 
 you have a given subject matter of litigation, all persons can be joined as plaintiffs 
 who are entitled to any kind of relief, joint, several, or in the alternative, against 
 any defendant liable jointly, severally, or in the alternative on that particular sub« 
 ject matter of litigation, but not otherwise." If the present writers may be per- 
 mitted an opinion it would be that this statement of the rule is sound, and that 
 Booth V. Briscoe, instead of conflicting with, is a good illustration of it. The rule 
 requires that instead of looking at the persons, as heretofore, the subject matter of 
 the action is to be considered (somewhat in the same manner as if proceedings were 
 to be taken in rem), and permits a plaintiff to bring into one action all persons in- 
 terested, or who may be interested. In Booth V. Briscoe the "given subject mat- 
 ter " was the libel, and all persons affected joined in the action although severally 
 interested. See also Honduras v. Lefevre, L. R. 2 Ex. D. 301 ; Evans v. Buck, 
 L. R. 4 Ch. D. 432 ; Child v. Sttnning, L. R. 5 Ch. D. «95 ; lb. 7 Ch. D. 413. 
 
 Principal and agent joined as defendants; plaintiff claiming that agent had 
 authority to bind principal, and if not that agent should be held in damages, — The 
 Honduras Inter-Oceanic Railway Company v. Lefevre and Tucker, L. R. 2 Ex. D. 
 301, was an action brought bv a Companjr against L. & T., the claim stated that 
 L., through T., who professed to be, and in fact was, the agent of L., contracted 
 to take a certain number r( debentures in the plaintiff Company, which contract 
 L. had failed to perfonn ; and that L. denied that T. was authorized by him to 
 make the contract. Tne plaintiffs prayed for specific performance of the contract 
 o- for damages against L. ; or in the alternative, if it snould appear that T. had no 
 authority to act is L.'s agent, then for specific performance and damages against T. 
 It was said by Cockbum, C. J., that rule 3 was confined to cases in which a 
 plaintiff has a right of action at his option against either of two parties, as for in- 
 s* uce, against a principal debtor and his surety. But this point was not deter- 
 mined. It was argued that if rule 3 was not wide enough that no relief could be 
 given under rule 6, for that only applied to amendments in an existing cause. It 
 was held that the oase came under rule 6 if not under rule 3, and that the action 
 was properly framed. 
 
 Lessor andperson claiming under him joined in an action of trespass. — In Child v. 
 Stenmng L. R. 6 Ch. D. 696, in an action for trespass by the plaintiff, who was a 
 msee of W., the defendant, in his defence and counter-claim, to which he made 
 W. a party, claimed a right of way by grant from W. prior to the plaintiff's lease, 
 IS P™y*" * declaration of his rights, and an injunction, and damages against the 
 plaintm ; and in the alternative ne prayed an indemnity and damages aginst W. 
 The plamtiff amended his claim and made W. a defendant, and prayed an injuno- 
 
 m 
 
 > 
 

 182 JUDICATURE ACT. 
 
 O. XII« tion and damages against the original defendant, and in the alternative damages 
 
 R. 1. a},'ainst W. : — Held by the Court of Appeal that W. was properly made a defend- 
 
 ant to the amended claim under Rule 3, which is not confined to cases in which the 
 alternative relief prayed against one defendant is consistent with that prayed 
 against the other. Mellish, L. J., said : — "It is quite plain that by the rule power 
 was giveii to •J r' ' ' ifif to bring actions against several defendants in the alternative. 
 Tliat is what li in the present case. An action has been brought against 
 
 several de. !): ^^ .. , .:* ^ the facts are such that the plaintiff must be entitled to 
 relief agains* -j.i" ji :her of them. The Vice-Chancellor allowed the demurrer 
 on the ground that the causes of action are not the same. If we were to say that 
 two persons would not be joined as defendants unless the causes of action against 
 them were ^\i<.cAy the at. mo the object of the Legislature would be entirely de- 
 feated. In h'osL ' . 1 wl 'temative remedies are sought against two persons 
 the causes of action are dih's.vr '■: , a^, in the case where an action is brought against 
 an agent and his principal, because the plaintiff is uncertain whether he shall be 
 able to prove the authority given to the agent, as in Honduras Inter-Oceanic Rail- 
 way Company v. Tucker, L. 11. 2 Ex. D. 301. There the plaintiff seeks compensation 
 for one wrongful act, but he cannot tell which of two parties is really liable. I 
 think it was exactly the case intended to be provided for by the rule." 
 
 The same case came on for hearing as reported in 7 Ch. D. 413, and it was held 
 that the plaintiff was not at the hearing bound to elect against which of the 
 defendants to proceed, but that the counsel of the lessor might support the case of 
 the plaintiff against the other lessees. 
 
 Publisher and jM'oprietoi' of newsxtaper joined in action for libel, — In Edward v. 
 Lowt.her 34 L. S. T. N. s. 255, it was said, "The third rule lays down that 'All 
 persons may be joined as defendants against whom the right to any relief is alleged 
 to exist, whether jointly, severally or in the alternative.' So that the proprietor 
 could undoubtedly have been made a defendant with the publisher in the first 
 instance. The 13th rule (Ont. r. 15 a. ), says ' the Court or a Judge may . . . 
 . . . on such terms as may appear to the Court or a Judge to be just, order . . 
 
 . . that the name or names of any party or parties, whether plaintiffs or 
 defendants, who ought to have been joined, or whose presence before the Court 
 may be necessary in order to enable the Court effectually or completely to adjudi- 
 cate upon and settle all the questions involved in the action, be added.' The 
 words ' ought to have been joined ' mean ought in order to do complete justice in 
 the action. Here if the cause of action exists at all, it is clearly one tnat exists 
 against both the publisher and the proprietor." 
 
 ".4«e»7!«<u-e."— See also O. XV. r. 13. 
 
 Form when alternative relief asktd. — Alternative cases should not be mixed up 
 together, but should be classed under separate headings, and alternative claims to 
 relief should be clearly stated ; per Thesiger L. J. in Davy v. Garrett, 38 L. T. N. 
 S. p. 81. 
 
 90. 
 
 2. Where an action has been commenced in the name of the 
 wrong person as plaintiff, or where it is doubtful whether it 
 has been commenced in the name of the right plaintiff or 
 plaintiffs, the Court or a Judge, if satisfied that it has been 
 so commenced through a bona fide mistake, and that it i» 
 necessary for the determination of the real matffer in dispute 
 so to do, may order any other person or persons to be substi- 
 tuted or added as plaintiff or plaintiffs, upon such terms as 
 may seem just. 
 
 See Eng, R. Sup. C, O. XVI., r. 2 ; R. S. 0., c. 49, s. 5. 
 See notes to 0. XII., r. 15. 
 
PARTIES. 
 
 ' 91. 
 
 3. All persons may be joined as defendants against whom <>• xii. 
 the right to any relief is alleged to exist, whether jointly, "* ^' 
 severally, or in the alternative. And, without any amendment, 
 judgment may be given against such one or more of the defen- 
 dants as may be found to be liable, according to their respec- 
 tive liabilities. 
 
 See Eng. R. Sup. C, 0. XVI., r. 3. 
 
 See notes to O. XII., r. 1. 
 
 » 
 
 93. 
 
 4. It shall not be necessary that every defendant to any 
 action shall be interested as to all the relief thereby prayed 
 for, or as to every cause of action included therein ; but the 
 Court or a Judge may make such order as may appear just, to 
 ])revent any defendant from being embarrassed or put to 
 expense by being required to attend any proceedings in such 
 action in which he may have no interest. 
 
 See Eng. R. Sup. C, O. XVI., r. 4. 
 
 The declaration that it shall not be necessary that every defendant shall be in- 
 terested as to every cause of action, appears to countenance the argument for the 
 wider construction of rules 1 and 3, and to shew that in one action a number of 
 causes may be tried, with several of which some of the defendants may have no 
 connection whatever. As pointed out, however, by Mr. Axthur Wilson, the 
 words " cause of action " are capable of meaning either the fact out of which the 
 action arises, or the legal relation to which that fact gives rise. For instance, in 
 Booth V. Briscoe, L. R. 2 Q. B. 496, where eight persons were libelled by one pub- 
 lication, the cause of action, if viewed in one way, would be the publication 
 nierely, if in the other the wrong done to each individual and the corresponding 
 individual right to damages. The effect of the rules then is, that it is not neces- 
 sary that ekch defendant should be interested in the legal relationship existing 
 between the plaintiff and the other defendants, but that he must still be connected 
 with the facts, out of which a different legal relationship from his own arose. See 
 notes to Rule 1. 
 
 Demurrer for multifariousness.— "By a marriage setttlement real estate was 
 limited to such uses as the husband and wife should appoint, and, in default of 
 appointment, to the use of the trustees during the life of the wife, on trust for her, 
 for her separate use, with remainder to the husband in fee. The husband entered 
 into a contract to sell the property, the purchaser having notice of the provisions 
 of the settlement. The purchase money was paid to the trustees of the settle- 
 ment, and a draft conveyance was approved, in the form of an appointment by the 
 husband and wife to the purchaser, but before the conveyance had been executed 
 the husband suddenly died, having, by a will dated before the contract, devised 
 all his real estate to trustees upon trust for his widow for life, and after her death 
 to sell and divide the proceeds as therein directed. The widow, who was one of 
 the executors, brought an action against the purchaser, the other executors, and 
 * 1? 4f^'*^^^ ^" *™^* under the husband's will, asking the Court to determine 
 whether she could be compelled to concur in the conveyance to the purchaser, 
 what was the effect of the contract for sale, what would be the devolution of the 
 purchase money if the contract should be completed, and whether, if the contract 
 was comi)leted by the trustees of the settlement alone, the purchaser would be 
 entitled to compensation out of the purchase money in respect of the plaintiff's life 
 mterest :— Held, that the statement of claim was not open to demurrer by the 
 purchaser on the ground that he was not interested in all the questions raised, or 
 
 183 
 
184 JUDICATURE ACT. 
 
 O* XII. on the gn'onn<l that only a declaratory decree was asked for. James, L. J, , said : — 
 
 H, 4. " Then as to the difficulty su^ested, that the defendant, Barker, will be kept 
 
 here as a party while questions in which he is not interested are dealt vdth and 
 disposed of, one of t.>i<> most beneficial of the rules under the new system is, that it 
 is (^uite competent for the Court to say, We will have those two questions in which 
 he IS interested tried first— the two first auestions, which relate entirely to the 
 demurring defendant, viz., as to what are nis rights under the contract— and the 
 Court can put those two questions in the course of the trial in the first inatanoe, 
 and determine them as between him and the other parties, and he will not be pre- 
 judiced in any way by the other matters which have to be disposed of. It seems 
 to me it would be quite right that the Court should determine in the first instance, 
 what are the rights of Mrs. Barker as against the representatives of the testator." 
 Cox V. Barker, L. R. 3 Ch. D. 359. 
 
 93. 
 
 5. The plaintiff may, at his option, join as parties to the 
 same action all or any of the persons severally, or jointly and 
 severally, liable on any one contract, including parties to bills 
 of exchange and promissory notes. 
 
 See Eng, R. Sup. C, 0. XVI., r. 5: G. 0. Chy., No. 62. This rule is really 
 covered by rule 3, see notes to rule 1. 
 
 Where two of five defendants, jointly and severally liable to the plaintiff, had 
 become bankrupt, it was held that the action might proceed against the other three 
 defendants without bringing the trustees in bankruptcy or the two bankrupt de- 
 fendants before the Court, or giving them notice of the proceedings, Lloyd v. Dim- 
 mack, L. R. 7 Ch. D. 398. 
 
 See, as to parties in respect of joint and several demands, Mayor of Berwick v. 
 Murray, 5 W. R. 2f)8 ; Colby v. Hawkins, 6 Jur. 162 ; Mclntyre v. Connell, 1 Sim. 
 N. S. 252. 
 
 By 6. O. Chy. No. 62, where the plaintiff has a joint and several demand 
 against several persons, either as principals or sureties, it shall not be necessary to 
 bring before the Court, as parties to a suit concerning such demand, all the per- 
 sons liable thereto ; but the plaintiff may proceed against one or more of the 
 persons severally liable. The following are tne principal cases decided under that 
 Order : — 
 
 Where a surety files a bill to set aside a bond, the principal and co-surety are 
 both necessary parties, Allan v. Houlden, 6 Beav. 148. Sureties cannot be sued 
 without their principals, Pierson v. Barclay, 2 D. & Sm. 7->6 ; Lloyd v. Smith, 13 
 Sim. 4.57, 7 Jur. 460 ; Seidler v. Sheppard, 12 Gr. 4.56 ; Cockburn v. Gillespie, 11 
 Gr. 465 ; but plaintiff may elect against which of two principals, or which of two 
 sureties, he will proceed, Lloyd v. Smith, 7 Jur. 460 ; and see Wilson v. Goodman, 
 4 Ha. 63. 
 
 This Order does not allow a partnership debt to be recovered against one partner's 
 representative without making a surviving partner a party, Hills v, McRae, 9 Ha. 
 297 ; Cox v. Stephens, 2 N. R. 506. But see Haig v. Grey, 3 D. & Sm. 741 ; Thorpe 
 V. Jackson, 2 Y. & 0. 553. 
 
 Where a bill, besides charging a surviving executor with a breach of tmnt, seeks 
 account of the personal estate of the testator, a personal representativ* > " the de- 
 ceased executor must be made a partv. Biggs v. Penn, 9 Jur. 368 ; and b^^p remarks 
 on this case, Shipton v. Rawlins, 4 Ha. 619. In an administration suit all persons 
 liable must be parties, Hall v. Austin, 10 Jur. 452 ; but where two classes of tma- 
 tees committed a breach of trust, the cestui que trusts may proceed against one class 
 only, McGachen v. Dew, 15 Beav. 84. 
 
 See also, Atkinson v. Mackreth, L. R. 2 Eq. 570 ; Gray v. Lewis, L. R. 8 Eq. 
 526 ; 18 Chan. App. 1052 ; St. Aubyn v. Smart, L. R. 3 Oh. App. 646 ; Plumer v. 
 Gregory, L. R 18 Eq. 621, 627 ; Coppard v. Allen, 2 D. J. & S. 173, 180. 
 
T^ 
 
 It * 
 
 PARTIES. 
 
 185 
 
 94. 
 
 6. Where in any action, whether founded upon contract or •• ^■■« 
 otherwise, the plaintiff is in doubt as to the person from whom *• ** 
 he is entitled to redress, he may, in such manner as hereinafter 
 mentioned, or as may be prescribed by any special order, join 
 
 two or more defendants, to the intent that in such action the 
 question as to which, if any, of the defendants is liable, and 
 to what extent, may be determined as between all parties to 
 the action. 
 
 See Bng. Sup. C, O. XVI., r. 6. 
 
 Notwithstanding the use of the words "in any action," it has been held that 
 this rule is applicable to the commencement of an action as well as to a difficulty 
 arising pending the action, the Honduras Inter-Oceanic Railway Company r. 
 Lefevre, L. R. 2 Ex. D. 301; 25 W. R. 310, and 36 L. T. N. S. 46. The reports 
 of these cases, however, are not quite consistent, see notes to r. 1. 
 
 95. 
 
 7. Trustees, executors, and administrators may sue and I c 
 sued on behalf of, or as representing, the property or estate of 
 which they are trus^^ees or representatives, without joining any 
 of the parties benedcially interested in the trust or estate, and 
 shall be considered as representing such parties in the action ; 
 but thy Court or a Judge may, at any stage of the proceedings, 
 order any of sach parties to be made parties to the action, 
 either in addition to, or in lieu of, the previously existing par- 
 ties thereto. 
 
 See Eng. R. Sup. C, 0. XVI. r. 7 ; G. 0. Chy. Nos. 58, 61 ; Imp. Act 15, 16 Vic. 
 c. 86, 8. 42. 
 
 This rule is in substance a repetition of Order 61 of the Consolidated Chancery 
 Orders which is by rule 14 of this Order declared to be in force as to actions in the 
 High Court, Mills v. Jennings, L. R. 13 Ch. D. 649. 
 
 G. O. Chy. No. 61 is as follows:— "In all suits concerning real or personal 
 estate which is vested in trustees under a will, settlement, or otherwise, the trustees 
 flhall represent the persons beneficially interested under the trust, in the same 
 manner and to the same extent as executors or administrators, in suits concerning 
 personal estate, represent the persons beneficially interested in such personal estate ; 
 and in such case it shall not be necessary to make the persons beneficially interested 
 under the trusts parties to the suit ; but, on the hearing, the Court, if it thinks fit, 
 may order such persons, or any of them, to be made parties." 
 
 BiU to execute the trusts, — In Cox v. Barnard, 5 Hare 253, the effect of the Gen. 
 Order is discussed. That case was a suit to execute the trusts of a will devising 
 real estates to trustees for certain persons for life, and after their decease, for sale ; 
 with power to give discharges for the proceeds and the rents and profits, and with 
 * 4}'*®^*'°'* to stand possessed of the moneys to arise thereby, upon trust for the 
 children of the tenants for life, the trustees and the tenants for life being defendants ; 
 but there being no power of sale until after the death of the tenants for life, the 
 Court, notwithstanding the 30th Order of August, 1841, directed that the children 
 ?« T *®"*?'* ^^^ ^'f® should be made parties. Sir James Knight Bruce said :— 
 I entertain some doubt whether this case is within the terms of the 30th Order. 
 That Order was intended to apply to real estate the nrinciple which was applied in 
 the case of personalty. The executor represented tne entire personal estate, and 
 the parties beneficially interested were never made parties. Under this rule 
 
 (ID 
 
 I 
 
'SHI 
 
 
 186 JUDICATURE ACT. 
 
 O. XII. jiersonal property, to any extent, waa administered by the Court. With regard to 
 
 gg, y. real estate it waa otherwiae. Notwithatanding the truateea might have the most 
 
 unlimited powers of dealing with the eatate, the parties beneiiciallv intereateil, 
 however aniall or remote their interest might be, were still held to be necesaaiy 
 parties. The Order waa designed (as far aa it goea) to give the same representative 
 character to deviaees in trust of real eatate, which the |>rinciples of the Court gave 
 to executora, in cases ^^ here the powers of the devisees were equivalent to tiie 
 powers of executora. In this caae the deviaees in truat have no present power to 
 sell ; the power of sale does not come into operation during the lifetime of the 
 tenants for life. The truateea have not, therefore, that dominion over the eatate 
 which executora have at law over the peraonal proi)erty of a testator. Tlie Ordur 
 refers to the posaesaion of analogous powera in the two caaes : to powers which the 
 executora actually have at the time the Court is called upon to administer the estate, 
 and not to powers which they will have at a future time, or after a certain event shall 
 have happened. I think, therefore, that this is a case in which, even if the 
 circumstances bring it within the language of the Order, I ought to exeicise the 
 discretion given to the Court in the latter part of the Order, and direct that the 
 persons interested in remainder be made partiea to the auit." See also Densem c. 
 Elworthy, 9 Hare, app. 43; Stewart v. Hunter, 14 Gr. 132. 
 
 " Bill to set aside the settlement. " — In general, trustees do not sufficiently represent 
 the cestui que trust in suits to impeach or set aside the instrument creating the trust. 
 Head i: Prest, 1 K. & J. 183 ; Houlding v. Poole, 1 Gr. 206 ; Rogers v. llogers, 2 
 Gr. 137 ; Baker v. Trainor, 15 Gr. 232 ; Thomas v. Torrance, 1 Ch. Ch. R. 46. 
 But it is otherwise where the interests of one of the trustees conflicts with those 
 ot the cestui que trust, Payne v. Parker L. R. 1 Ch. Ap. 327. Where one of the 
 trustees was tenant for life, and after the lap.^e of other estates was to hold the 
 eatate for the benefit of the children of P. C. : — Held, that the trustees sufficiently 
 represented these interests, and that they need not be partiea to a bill impeaching 
 the trust deed as fraudulent against creditors, Thompson v. Dodd, 26 Gr. 381. 
 
 Mortgage suits. — In Goldsmid v. Stonehewer, 9 Hare, app. 38, Sir W. P. 
 Wood, V.C., said:— "This is a claim for foreclosure by a first mortgagee 
 against the mortgagor and the second mortgagee. Before the hearing of the claim, 
 the second mortgagee filed an affidavit, in which he stated that the second mortgaf^e 
 was held by him as the trustee of a marriage settlement, under which trusts were 
 declared for the husband and wife for their lives, and for the children of the 
 marriage in remainder ; and that some of the shares of the children had been again 
 made the aubject of other settlements. The question now is, whether, in order 
 that a decree for foreclosure might be made, it is sufficient that the trustees of 
 moneys secured by the second mortgage are parties without the cestuis que trust 
 under the settlements being also parties. I have carefully considered the point, 
 ■with the desire of relieving the plaintiff, as far aa it could be safely done, from the 
 necessity of bringing the persons beneficially interested before the Court. It was 
 suggested that the Court might act on the principle which is applied in the case of 
 executora, and which is now made applicable, in proper case.s, to the trustees of 
 real estate. If the mortgage had been made to the party or had become vested in him 
 in the character of exec\itor, it would be sufficient to make him a defendant, without 
 any of the persons beneficially interested, r.ud the decree of the Court wouhl bind all 
 the persons who might be so interested ; but there is this difference between the case 
 of an executor and that of a trustee, that the executor has the control of the whole 
 estate of his testator, whilst the power of the trustee is lim*.'^ to the particular 
 fund which is the subject of the trust; and he has not necessr .ilv the control of any 
 other funds. I think, therefore, that the Court should nt/t, by a decree of fore- 
 closure against the trustee only, without giving the cestui que trust the opportunity 
 of redeeming, foreclose all the partiea interested under the settlements. Still, it is 
 clear, that the infants and trustees of the settlements which have been made of the 
 shares of the children in remainder cannot reasonably be expected to be in a posi- 
 tion to redeem the estate, and not having the means of redeeming the mortgage, I 
 think it is not necessary that they should be made parties. If the husband and 
 wife, and the adult persons interested under the trusts of the original settlement 
 are made parties, the order may be made." 
 
 In Hanman v. Riley, 9 Hare, app. 40, the distinction as to the necessity of 
 making persons beneficially interested in real estate parties in suits b^ mortgagees 
 for foreclosure or sale of mortgaged estates, against the persons havmg the legal 
 interest only^ where such persons are executors of the mortgagor, and where they 
 are merely trustees of settlements of the mortgaged property, was pointed out. 
 
PARTIES. 
 
 187 
 
 Sir W. Page Wood, V. C, in referring to Goldsraid v. Stonehewer, said : — " That <*• XII, 
 was the case of a settlement, and not of a wil' ; and I was of opinion that as the R. y. 
 trustees would be in possession only of the at tied funds, and not of funds applica- 
 ble to the purposes of redemption, it would uo proper to require that the tenants 
 for life uncfer the settlement, and the children who had attained twenty -one, should 
 be made parties. This is the case of a will, in which the devisees in trut«t are also the 
 executors, and are, therefore, the persons in whom any funds which may be applica- 
 ble to the payment of the debts of the testator, and to the redemption of the estate, 
 are vested. I do not think it will be necessary, therefore, in this case, to make 
 tlie cestuig que trust parties. The decree may be made in their absence." See also 
 Sale V. Kitson, 3 DeG. M. & G. 119. 
 
 To a bill by trustees to foreclose a mortgage made for the benefit of creditors, 
 the creditors are not necessary parties. Eraser v. Sutherland, 2 Gr. 442 ; Shaw v. 
 Liddell, 1 U. C. L. J. .57. As to parties to a suit against trustees of a creditor's 
 deed, see Bateman v, Margerison, 6 Ha. 496. 
 
 A distinction exists between, foreclosure and redemption suits. —In Mills v, Jennings, 
 L. R. 13 Ch. D. 639, Cotton, L. J. , referring to Golusmid v. Stonehewer, said :— ' ' But 
 that was a suit for foreclosure, in which the trustee was a defendant whom the plain- 
 tiff sought to foreclose ; and there is reason in such a case for not giving the plaintiff 
 the relief he seeks unless he brings before the Court all those interested in the 
 equity of redemption who may probably have the means of redeeming the mort- 
 gage. Here the plaintiff trustee is seeking to redeem, and the dismissal of his 
 bill will be effectual in favour of the defendant, Jennings, so as to prevent any 
 further proceedings for redemption in respect of the property vested in the plaintin 
 a^ tnistee. " On a bill for redemption of property vested in trustees under an'absolute 
 deed intended as a mortgage, one of the trustees being beneficially interested : — 
 Held that the cestui que trusts were sufficiently represented, Kerr v. Murray, 6 Gr. 
 :h43; see also Skiffen v. Davis, Kay. app. 21; Dickson v. Draper, II Gr. 362; 
 Glegg V. Rees, L. R. 7 Ch. Apj). 71 ; Morley v. Morley, 25 Beav. 253 ; Shaw v. Hard- 
 ingham, 2 W. R. 657. 
 
 Where the whole estate is represented by the trustees, as in case the ti-ustees 
 are also executors, the representation is sufficient, Marriott /'. Kirkham, 3 Gili. 
 5.H6j Sale y. Kitson, 3 DeG. M. & G. 119; Hanman v. Riley, 9 Hare, app. 40; 
 DeLisle v. McCaw, 22 Gr. 254 ; or, if the executors have a power of sale, Smith > . 
 Andrews, 4 W. R. 353; but secus where there is an implied power only, Bolton '. 
 Standard, 6 W. R. 570. 
 
 Partition suits. — The rule applies to proceedings under the English Partition 
 Act, Simpson v. Denny, L. R. 10 Ch. D. 28. 
 
 If the trustee has disclaimed the rule does not apply, Young v. Ward, 10 Hare, 
 ai)p. 58; and see Stansfield v. Hobson, 16 Beav. 189. 
 
 If the estate has to he sold all parties should at least be made parties in the 
 Master's office, Doody v. Higgins, 9 Hare, app. 32 ; Piggott v. Picrgott, 8 L. T. 
 N. S. 268 ; Cuddick v. Cook, 32 Beav. 70 ; Stewart v. Hunter, 14 Gr. 132. The 
 effect of the service is to bind the interests of the persons served, Doody v. Higgins, 
 9 Hare App. 32 ; but they cannot be made to account without some independent 
 proceeding to enforce the liability. Walker v. Seligmann, L. R. 12 Eq. 152. 
 
 A suit charging a breach of trvM cannot proceed in the absence of the represen- 
 tative of one of the trustees liable to contribute, Devaynes v. Robinson, 24 Beav. 
 8(i ; Shipton v. Rawlins, 4 Ha. 619. And see as to proceedings against some only 
 of the parties to a breach of trust. May v. Selby, 1 Y. & C. 235 ; Phillipson v. 
 Gatty, 6 Ha. 26; Simes v. Eyre, 6 Ha. 137; Horsley v. Fawcett, 11 Beav. 565; 
 Fowler v. Reynal, 2 D. & Sm. 749. The order applies to breaches of trust, 
 Kellaway v. Johnston, 5 Beav. 319 ; Perry v. Knott, 5 Beav. 293 ; and on an infor- 
 mation against public trustees, Att.-Gen. v. Pearson, 2 Coll. 681; Att.-Gen. v. 
 Corporation of Leicester, 7 Beav. 176. 
 
 Discretion. — The matter is one of discretion with the Court, King v. Keating, 
 12 Gr. 29; Tudor v. Morris, 22 L. J. Chy. 1051; Dickson v. Draper, 11 Gr. 362; 
 Cropper v. Mellersh, 24 L. J. Ch. 430 ; Wilkins v. Reeves, 3 W. R. 305. 
 
 Costs.— Ab to costs wh»re trustees or trustees and cestui am trust sever in their 
 defence, see notes to 0. yill., r. 2. 
 
i ':; 
 
 188 
 
 •.XII. 
 
 JUDICATURE ACT. 
 
 96. 
 
 8. Infants may sue as plaintiffs by their next friends, in the 
 manner practised in the Court of Chancery before the passing 
 of the Act ; and may, in like manner, defend any action by 
 their guardians appointed for that purpose, or by the official 
 guardian, as the ca^e may be. 
 
 Ab to the official guardian, hia appointment, salary, etc., see the Statute, sec. 62. 
 
 As to service of a writ upon the official guardian, see O. VI, , r. 4. 
 
 As to proceedings in default of appearance of an infant, see 0. IX., r. 2. 
 
 On account of the supposed want of discretion of an infant and his inability to 
 bind himself and make himself liable for costs he is incapable of commencing pro- 
 ceedings without the assistance of some other person who may be responsible to 
 the Court for the propriety of the suit in its institution and progress. If no next 
 friend be named the defendant may move to have the action dismissed with costs 
 to be paid by the solicitor (Daniell, Ch. Fr. 67). Any person who is sui juris and 
 is not a defendant may be a next friend, Cross v. Cross, 8 Beav. 455 ; Fayne v. 
 Little, 13 Beav. 114. 
 
 Security for coats.— The next friend of an infant need not be a person of sub- 
 stance, re McConnell, 3 Ch. Ch. K. 423. It is otherwise in the case of the next 
 friend of a married woman, Bann v. Lawless, 1 Ch. Ch. 333 ; Van Winkle v. 
 Chaplin, 2 Ch. Ch. R. 98. 
 
 Two suits by different next friends.— "Where two suits have been instituted on be- 
 half of an infant an inquiry will be directed as to which is more for his benefit, 
 and will permit that one only to proceed, Mortimer v. West, 1 bwanst., 358. In 
 Campbell v. Campbell, 2 M. & C. 25, it was held of several suits instituted on be- 
 half of infants, and for the protection of their property, the Court will give a pre- 
 ference to that which is capable from its frame of being most beneficially and 
 effectually prosecuted, notwithstanding that in point of form the relief sought by 
 another is more extensive. The Lord Chancellor said : — "In such a case as this, 
 where another next friend takes upon himself to file a second bill, it is incumbent 
 upon him to shew some defect in the first suit, or a decided preference in the 
 second. If theii merits are only equal priority must prevail." 
 
 Improper suit dismissed. — In a clear case the Court, being of opinion that a suit 
 had been commenced by the next friend of infants to promote his own views and 
 not for the benefit of the infants, summarily, and without a reference to the Master, 
 dismissed it, with costs to be paid by the next friend, Sale v. Sale, 1 Beav. 686. 
 
 In an administration suit on behalf of infants by a solicitor wholly uncon- 
 nected with the family, it was, on motion of the defendant, referred to the Master 
 to inquire whether it would oe for the infants' benefit that the suit should be 
 prosecuted, the defendant undertaking to render to the Master the accounts prayed 
 tor by the bill, Bichardson v. Miller, 1 Sim. 133. 
 
 But in Smallwood v. Butter, 9 Hare 24, the Court refused to dismiss or refer 
 to the Master for inquiry the bill of infant residuarv legatees, filed by next friend, 
 although the estate mi^ht have been administered under a claim, or the friend 
 protected by payment mto Court under the Trustee Belief Act, the propriety of 
 any expenses mcurred being a matter for consideration in ultimately dealing witii 
 the costs of the suit. The Court had regard to the exercise of the discretion 
 of the father of the infant plaintiff in authorizing the suit, no improper motives 
 appearing, although the father did not contribute to the maintenance of the 
 infants, and lived apart from his wife by whom the infants were suppported. 
 
 In Dacosta v. Dacosta, 3 F. Wms. 139, a father left a great personal estate to 
 two infant children, and made his wife executrix. A bill was brought in the 
 infants' name by a relation, as prochein amy, to call the mother to an account. On 
 affidavit of several other relations, that this suit in the infants' name was out of 
 pique, and not for the infants' good, the Court referred it to a Master, who report- 
 ing the matter to be so, the suit was stayed. 
 
PARTIEM. 
 
 189 
 
 In Nftl(l*^r V. HftwklnB, 2 M. &. K. 249, the '. -^d Ch .ncellor said:— "The true 
 and just principle which should Kovern all s ich oasts is this. No discouragement 
 ought to De thrown in the way of persons bona fide a ting as next friends ; but no 
 undue facility should be given to mere volunteers, wlio interfere rather for their 
 own puri)<>8es than for thu infanta' advantages. While they appear toact6(ma./ic{« 
 they will be protected ; the presumption will rather be in their favour ; the proof 
 will rather be thrown upon those who impeach their motives ; the leaning will be 
 more for than against tnem. But no strained presumptions will be made to protect 
 them ; no forced constructions will be put on tneir conduct ; no benefit from bare 
 poBsibilitius will be conjured up in their behalf. They must be content to have 
 their motives appreciated and their acts judged like other parties. If they have 
 involved themHelves in suspicion, their proceedings must be subjected to inquiry ; 
 if they have incurred just blame, be it by improper interfere r.e, or be it by un- 
 neoesHary interference, they must abide the consequences ; the Muit at their instance 
 must be stayed ; or if the suit be useful to the infant ; but the parties instituting 
 it be unlit to conduct it, they must give place to others in whom the Court can 
 better repose confidence." See also Fox v. Suwerkrop, 1 Beav. 583 ; Guy v. Guy, 
 2 Beav. 460 ; Lyons v. Blenkin, Jao. 259 ; Clayton v. Clarke, 3 DeG. F. & J. 682. 
 
 Cuttodp of Infanta.— Sio notes to sec. 17« s.-a. 9. 
 
 XII. 
 
 97. 
 
 9. Married women may sue or defend without their hus- 
 bands and without next friends, in all cases relating to their 
 separate estate, or to their separate engagements, contracts or 
 tcvrts ; and also in suits for alimony ; and in other cases by the 
 leave of a Court or a Judge, on giving (in such other cases) 
 such security (if any) for costs as the Court or a Judge may 
 require. 
 
 See Eng. R. Sup. C, 0. 16, r. 8 ; R, S. 0., c. 125. 
 
 Separate estate — Prior to Con, Stat. U. C. Cap. 72. — At Common Law the sepa- 
 rate existence of the wife is not, as a general rule, known or contemplated, it 
 being considered merged by the coverture in that of the husband, and the wife 
 being no more recognized than is the cestui que trust or the mortgagor ; the legal 
 estate, which is the only interest the law recognizes being in others, she is not per- 
 mitted by the common law to take or enjoy any real or personal estate, separate 
 from, and independently of her husband. But in Equity, whose creature the wife's 
 separate estate is, the case is widely different. There a married woman is consid- 
 ered capable of possessing property to her own use, independently of her husband ; 
 and upon once being permitted to hold property to her separate use as a feme sole, 
 she takes it with all its privileges and incidents, including the jus disponendi. 
 Snell's Eq. 341. 
 
 Creation of separate estate. — Much discussion has arisen as to the words neces- 
 sary for the creation of separate estate. Spragge V. C. (now Chancellor), in Royal 
 Canadian Bank v. Mitchell, 14 Gr. at pp. 416, 417, summarizes the cases as follows:— 
 "The distinctions in some of the cases are very nice, but in all of them, I think, it 
 has been held not to be sufficient that the use, or even the absolute use, shall be in 
 in the wife, but the husband must be excluded in terms or by implication. In 
 Roberts v, Spicer, 5 Mad. 491, the gift was by will, to a married daughter of the 
 testator, of 1^200, ' to and for her own use and benefit,' and Sir John Leach ' held 
 clearly that this could not be considered as a gift to the separate use of the wife.' 
 In Kensington v, Dollond, the trust was to pay the fund to a married woman for 
 her own use and benefit. I refer to the case principally for the language of Sir J. 
 Knight Bruce, then "Vice-Chancellor, * the intention to give a separate estate, must 
 be clearly expressed ; a gift to a wife for her own use and benefit, does not clearly 
 express such an intention.' The case is the less strong as an authority, that, in the 
 previous part of the same instrument, the words ' sole and separate use ' had been 
 used. In Rycroft v, Christy, 3 Beav. 238, there was a bequest to trustees for the 
 benefit of a married woman and her assigns for life, 'for her and their own absolute 
 use and benefit ; ' the testator had a natural daughter by the married woman, and 
 
^Fl 
 
 II 
 
 li'ii 
 
 9 i ! 
 
 IS';, 
 
 
 
 
 190 JUDICATURE ACT. 
 
 O. XII. the husband disclaimed. Lord Langdale said : 'I have, undoubtedly, very great 
 
 H. 9. difficulty in saying that, by the form of words contained in this will, the pr^port^ 
 
 is given to her for her separate use ; when the circumstances are considered it is 
 very probable that the testator so intended it, but I cannot say that such is the 
 effect of the words.' In Beales v. Spencer, 2 Y. & 0. C. C. 81, the trustees under 
 a marriage settlement, were to pay the dividends or interest of a fund unto, or to 
 empower the wife and her assigns to receive and take the same to and for, hei and 
 their own use and benefit ; the husband became banki-upt, and the wife claimed the 
 interest and dividends as separate estate ; and the claim was decided against her. 
 On the other hand, if the estate, real or personal, were expressed to be for the sepa- 
 rate use of the wife, or for her independently of her husband, or if by any other form 
 of expression the intention were manifested, that the wife should hold and enjoy 
 the estate separately from or independently of her husband, then it would be sepa- 
 rate estate. Wagataff v. Smith (9 Ves. 520), and see other cases collected in the 
 note to Hulme v. Tenant in White and Tudor L. C. (ed. 6)521." See also as 
 to what property is separate estate, liedman v, Brownscombe, 6 Pr. R. 84 ; Hooper 
 V. Maitland, 7 Pr. R. 50 ; Royal Canadian Bank v. T.IIochell, 14 Gr, 447 ; Lawson 
 V. Laidlaw, 3 App. R. 77. 
 
 Incidents of Separate Estate. — Lord Westbury in Taylor v. Meads 34 L. J. Chy. 
 203, said : "When the Courts of Equity established the doctrine of the separate use 
 of a married woman, and applied it to both real and personal estate, it became neces- 
 sary to give the married woman, with respect to such separate property, an inde- 
 pendent personal status, and to make her in equity a feme sole. It is of the essence 
 of the separate use, that the married woman snail be independent of, and free from 
 the control and interference of her husband ; with respect to separate property the 
 feme covert is by the form of trust released and freed from the fetters and disability 
 of coverture, and invested with the rights and powers of a person who is sui juris. 
 To every estate and interest held by a person who is sui juris, the Common Law at- 
 taches a right of alienation, and accordingly the right of a, feme covert to dispose of 
 her separate estate was recognized and admitted from the beginning, until Lord 
 Thurlow devised the clause against anticipation. . _ . . . The interest created 
 by the separate use is a creature of a Court of Equity to which there is nothing 
 correspondent at law, and which would be deprived of its character if it v/ere made 
 subject to a form of alienation that proceeds upon the basis of the existence of con- 
 trol and interest in the husband, and personal disability in the wife." 
 
 Contracts by married women bind their separate estate. — In Lawson v. Laidlaw, 
 3 App. 11. 82, Patterson, J. A., in dealing with this question, said : — "The Law of 
 the Court of Chancery is concisely exph ined by Lord Hatherly in Pickaid v. Hime, 
 L. R. 5 Ch. 274, 276 : ' There has been much discussion as to the precise mode in 
 which a married woman's estate could be affected by anything except actual dispos- 
 ition. It was strongly felt by the Court that there was great injustice in protecting 
 a married woman and allowing her to deprive others of their property by entering 
 into engagements which she nmst have known herself unable to fulfil in any other 
 way than out of her separate estate, though the Court seems to have felt some 
 difficulties as to the manner in which the separate estate could be reached. At one 
 time it was held that an appointment would be inferred ; but Lord Cottenham, in 
 Owens V. Dickenson, Cr. & Ph. 48, disposed of that by saying that if so the credi- 
 tors must take in the order of the appointments. All these theories have been given 
 up, and the doctrine has been placed upon a sound foundation by the decision in 
 Johnson r. (Jallagher, 3 D. F. & J. 494. Following that doctrine, the married 
 woman in this case must be taken, in making this contract, to have dealt with 
 respect to this property, and in such a case thy Court will compel her to fulfil her 
 obligations. . . . When she, by entering into an agreement, allows the suppos- 
 tion to be made that she intends to perform t he agreement out of her property, she 
 creates a debt which may be recovered, not by reaching her, but by reaching her 
 property.' In the same case the Lord Justice Gifford summarizes the law with still 
 greater brevity, at p. 277. His words are : 'As to the law of this case it is unneces- 
 sary to say anything, because, in the judgment of Lord Justice Turner in Johnson 
 r. Gallagher, 3 D. F. & J. 494, everything relating to the subject is clearly laid 
 down, and it amounts in substance to this : that a creditor having a claim against 
 a married woman can come here and assert and enforce an equity as against her 
 separate estate.' In Johnson v. Gallagher, 3 D. F. & J. 494, and also in Picard v. 
 Hime, L. R. 5 Ch. 274, the married woman was living separate from her husband. 
 That circumstance did not form one of the elements from which her liability was 
 deduced. It was merely used as a piece of evidence aiding the conclusion that her 
 intention was to pay the debt out of her separate propbrty. In the former case the 
 
PARTIES. 
 
 191 
 
 Lord Justice said : * She was, as I have said, living separate from her husband and « • 
 had seiJiirate estate ; and I think that where, under such circumstances, a married b. 
 woman contracts debts, the Court is bound to impute to her the intention to deal 
 with her separate estate, unless the contrary is clearly proved. The Court cannot 
 impute to her the dishonesty of not intending to pay for the goods which she pur- 
 chases.' In the case before us, the deposition of the defendant herself leaves no 
 room for inference, as she clearly shews that she, in fact, had in her mind when she 
 made the note, the intention which the Court, in the absence of evidence to the 
 contrary, would have imputed to her. In Mrs. Matthewman's case, L. R. 3 Eq. 
 781, Kindersley, V. C, says, following the doctrine in Johnson v. Gallaher, H D. 
 F. & J. 41)4, ' It is clearly not necessary that the contract should be in writing, 
 because it is now admitted that if a married woman enters into a verbal contract 
 exprossly making her separate estate liable, such contract would bind it. Nor is 
 it necessary that there should be any express reference made to the fact of there being 
 such separate estate ; for a bond or a promissory note given by a married woman, 
 without any mention of her separate estate, has long been held sufficient to make 
 her separate estate liable. If the circumstances are such as to lead to the conclu- 
 sion that she was contracting, not for her husband but for herself, in respect of her 
 separate estate, that separate estate will be liable to satisfy the obligation.' 
 
 "So in McHenry v. Davies, L. R. 10 Eq. 88, where the debt was created by 
 endorsing a bill of exchange. Lord Romilly said, p. 90, 'Upon the simple fact 
 that an English lady, possessed of separate property, in order to enable her agent 
 to raise money, signs her name on a piece of paper, intimating that she will be 
 liable to pay the amount, I am of opinion that when he has so raised the money 
 on the faith of the credit given by the signature of her name, she cannot afterwards 
 dispute lier liability and say that she is not liable to make good the amount out of 
 the property at her disposal.' " 
 
 Nature of Creditor's lien on separate estate. — In the same case Patterson, J. A., 
 upon this point said : — "It had been clearly established long before the case of the 
 Royal Canadian Bank v. Mitchell, 14 Gr. 41!?, was decided, that the debt of a 
 married woman which was, for want of a more accurate term, sometimeG said to 
 bo charged upon her property, was not so charged as to give the creditor a lien 
 upon the property, or to prevent its alienation at any time before decree. Ovens i-. 
 Dickenson, Cr. & Ph. 48 ; Johnson v. Gallagher. 3 D. F. & J. 494, 7 Jur. N. S. 
 273. Yet some of the cases in which that doctrine was enunciated seem to have 
 been cited to the learned Vice-Chancellor (the present Chancellor) who decided that 
 case. Among the more recent dicta affirming the same doctrine is a judgment 
 pronounced in 1 87(5, by Sir George Jessel, upon an interlocutory motion for an in- 
 jimction in the National Provincial Bank of England v. Thomas, 24 W. R. 1013. 
 The remarks of the Master of the Rolls are so apposite to the general subject we 
 are considering as to justify their quotation in full. He is reported to have said : — 
 ' This is an application of the holders of a promissory note signed by a husl)and 
 and a wife, the wife being entitled to some separate estate, under a settlement 
 a^tainst the wife and the trustees of the settlement, to recover the amount ouc 
 of the separate estate. The plaintiff moves ex parte for an order to restrain 
 tlie wife from dealing with her separate property ; and the ground on which he 
 bases his ap^ilication is this : that the promissory note is unpaid ; and he may 
 be entitled, if it continues unpaid, to judgment directing payment out of the 
 separate property then belonging to the married woman — judgment in the nature 
 of what is sometimes callecl ecjuitable execution. Now, neither the special nor 
 general engagements of a married woman have any further effect against her 
 separate property than to give the creditor a right to be paid out of it by obtaining 
 execution. No charge is created upon the property. He is an ordinary creditor, 
 and as such is in the same position, with respect to his debtor's property, whether 
 the debtor is a man or woman ; I must, therefore, refuse the application.' " See also 
 the language of Gwynne, J., in Merrick v. Sherwood, 22 U. C. C. P. 470-5 ; 
 Kraemer v. Gless, 10 U. C. C. P. 470 ; Emrich v. Sullivan, 25 U. C. R. 105, 107 ; 
 Wright V. Garden, 28 U. C. R. 009. In Horner v. Kerr, 6 App. R. 30, a doubt 
 was expressed as to whether a married woman could render herself liable under a 
 joint contract. 
 
 This being the law respecting separate estate irrespective of statutory provi- 
 sions it is iiroposed now to give the Statutes affecting the subject and the decisions 
 thereunder. 
 
 Con, Stat. U. C, c, 73.— The first section is as follows : — Every woman, who 
 has married since the fourth day of May, one thousand eight hundred and fifty- 
 
 XII. 
 
 at 
 
 ISO 
 
 > 
 
 !S 
 
 ii 
 

 192 
 
 JUDICATURE ACT. 
 
 ■•> '« 
 
 *• XII. nine, or who marries after this Act takes effect, without any marriage contract or 
 
 B. 9. settlement, shall and may, notwithstanding her coverture, have, hold and enjoy all 
 
 her real and personal property, whether belonging to her before marriage, or 
 acquired by her by inheritance, devise, bequest, or gift, or as next of kin to an 
 intestate, or in any other way after marriage, free from the debts and obligations 
 of her husband and from his control or disposition without her consent, in as full 
 and ample a manner as if she continued sole and unmarried, any law usuage or 
 custom to the contrary notwithstanding ; but this clause shall not extend to any 
 property received by a married woman from her husband during coverture. 
 
 Sec. 2. Every woman, who^ on or before the said fourth day of May, one thou> 
 sand eight hundred and fifty-nme, married without any -"jriage contract or settle- 
 ment, shall and may, from and after the said fourth day of May, one thousand 
 eight hundred and fifty-nine, notwithstanding her coverture, have, hold and enjoy 
 all her real estate not then, that is on the said fourth day of May, taken possession 
 of by the husband, by himself or his tenants, and all her personal property not 
 then reduced into the possession of her husband, whether belonging to her before 
 marriage or in any way acquired by her after marriage, free from his debts and 
 obligations contracted after the said fourth day of May, one thousand eight hun- 
 dret^. and fifty-nine, and from his control or disposition without her consent, in as 
 full an ample a manner as if she were sole and unmarried, any law, usuage or cus- 
 tom to the contrary notwithstanding. 
 
 Application of Con. Stat. U..C., e. 73. — It will be observed that this section 
 applies only (1) to women married since 4th of May, 1859, or if married before 
 that date, to real estate not then taken possession of by the husband and person- 
 ally not reduced into possession ; and (2) where there is no marriage contract or 
 settlement and that power is given only to " have, hold and enjoy all her real and 
 personal property," &c. No power is given to convey property as a feme sole. In 
 discussing the effect of this btatute. Draper, C. J., in Lett v. The Commercial 
 Bank of Canada, 24 U. C. R., at p. 658, said: — "The Act, as I have already 
 stated, is in my humble judgment to be construed as creating a marriage settle- 
 ment, in the terms of the first or second sections, in all cases to which those sections 
 respectively apply, and such settlement is to be dealt with as one made by a proper 
 conveyance to trustees, before marriage, for the use of the intended wife." 
 
 In Royal Canadian Bank v. Mitchell, 14 Gr. 418, Spragge, V. C, in applying 
 this language to the Act, said : — " She is to have, hold and enjoy her estate free from 
 the debts and obligations of her husband, and from his control or disposition, 
 without her consent, in as full and ample a manner as if she were sole and unmar- 
 ried ; a id if I were placing a construction upon a marriage settlement, or will or 
 othor instrument of the like nature, I do not know that I could, consistently with 
 the authorities, hold the real estate in question to be other than separate estate. 
 But in the construction of a statute we nave more to aid us than wu have, gener- 
 ally, at least, in the construction of a private instrument. We are to look at the 
 state of the law, before the passing of the Act, the mischief and defect intended 
 to be remedied, and the remedy given by the Act." He then enters upon an 
 analysis of the Act, and concludes as follows : — " The Act confers upon such prop- 
 erty certain qualities incident to separate estate, but it withholds that quality which 
 is the very foundation of the English decisions, the jus dispon^ndi. But there is 
 another provision in the Act which shews that it is only sub modo, if at all, that it 
 makes the real property of the wife separate estate, for it recognizes an estate and 
 interest in the husband during coverture, and provides that it shall not, during her 
 life, be subject to his debts. It is of the essence of separate estate that the hus- 
 l)and has no estate or interest in it. My construction of the Married Woman's 
 Act is that it gives to what Lord Westbury calls the ordinary equitable estate of a 
 feme covert, certain qualities for its better protection, which it did not possess 
 before, such qualities being incident to a separate estate, and sufficient probably, 
 if found in a private instrument, to constitute a separate estate ; but that upon a 
 proper construction of the whole Act, certain qualities incident to a separate estate 
 are withheld, and what is all important among them, that quality upon which the 
 decisions making the separate property liable for the married woman's contracts is 
 founded." 
 
 In commenting upon this case in Lawson v. Laidlaw, 3 App. R. , at p. 85, Pat- 
 terson, J., said : — " 1 understand the learned Chancellor to assert, not that the^MS 
 disponendi is essential to the existence of separate estate, for property settled to 
 the separate use of a married woman without power of anticipation is clearly 
 separate property, although she cannot dispose of it, but that the jus disponendi 
 
PARTIES. 
 
 193 
 
 is held to be essential to an effectual oharKe of the property for the married woman's 
 debts • which proposition is indisputable. In that case, m 1852, the defendant, C. 
 A. L. ' became entitled, as one of her father's heirs-at-law, to a share in certain real 
 estate', and she was married in 1854 without a marriage settlement. This property, 
 which was never taken possession of either by her or her husband, was afterwards 
 sold under a decree for the purpose of making parties partition. While the pur- 
 chase money was in Court, to part of which she was entitled, C. A. L., at her hus- 
 band's request, joined him in making a promissory note to the plaintiff for groceries 
 supplied to hsr husband, intending to pay it out of the money in Court :— Held 
 affirming the judgment of the County Court that the plaintiff was entitled to 
 recover. Per Patterson, J. A. :— (1) The personal property enjoyed by a married 
 woman under the Statutes of 1859 and 1872 is her separate property at law, to the 
 same extent and with the same incidents as property settled to her separate use was 
 and is in equity. (2) A promissory note made by a married woman for a debt of 
 her husband is not a debt binding on her personally, either at Common Law or 
 under the Statutes. (3) She may convey or charge her separate personal estate as, 
 a feme sole might do. (4) A promissory note or other general engagement derives 
 no efficacy, as a charge or conveyance, from anything in the Statutes, and therefore 
 has no effect except in equity. (5) When a married woman who has separate prop- 
 erty contracts a debt, she is deemed in equity to have contracted it with reference 
 to her separate property, and intending that it shall be paid out of that property, 
 and if she had power to dispose of that property, equity will make it liable for 
 payment of the debt. (6) Tne property so made liable must be property with 
 reference to which she may be supposed to have contracted, and therefore must be 
 property to which she is entitled when the debt is incurred. (7) Semble, that the 
 above propositions apply equally to real property coming under the Act of 1872. 
 
 In Homer v. Kerr, 6 App. R. 30, it was held that the rents derived by a feme 
 covert, married before 1859, from real estate acquired by her in 1865, were her sepa- 
 rate estate. 
 
 Statute 35 Vic., Cap. 16, Sec. 1, is as follows : — After the passing of this Act 
 the real estate of any married woman, which is owned by her at the time of her 
 marriage, or acquired in any manner during her coverture, and the rents, issues 
 and profits thereof respectively, shall without prejudice, and subject to the trusts 
 of any sttlement affecting the same, be held and enjoyed by her for her separate 
 use, free from any estate or claim of her husband during her lifetime, or as tenant 
 by the courtesy, and her receipt alone shall be a discharge for any rents, issues and 
 profits ; and any married woman shall be liable on any contract made by her re- 
 specting her real estate, as if she were a feme sole. 
 
 By J^O Vic, C&p. 7, Schedule A (156), the above section was amended, and it 
 now reads in the R. S. 0., c. 125, s. 4, as follows : — Sec. 4. The real estate of any 
 woman married after the second day of March, one thousand eight hundred and 
 seventy-two, whether owned by her at the time of her marriage, or acquired in any 
 manner during he- coverture, and the rents, issues and profits thereof respectively, 
 sliall without prejudice, and subject to the trusts of any settlement affecting the 
 same, bn held and enjoyed by her for her separate use, free from any estate therein 
 of her husband during her lifetime, and from his debts and obligations, and from 
 any claim or estate by him as tenant by the courtesy ; and her receipts alone shall 
 be a discharge for any rents, issues and profits of the same, but nothing herein con- 
 tained shall prejudice the right of the husband as tenant by the courtesy in any 
 real estate of the wife which she has not disposed of inter vivos, or by will. 
 
 B. S, 0., c. 12'^. 8. 19. — "Any married woman shall be liable on any contract 
 made by her respecting her real estate, as if she were a feme sole," 
 
 R, S. o-i c. 1S5, a. 20.— "X married woman may maintain an action in her 
 own name for the recovei^ of any wages, earnings, money and property, by this or 
 any other Act declared to be her separate property, and shall have in her own name 
 the same remedies, both civil and criminal, against all persons whomsoever for the 
 protection and security of such wages, earnings, money and property, and of any 
 chattels or other her separate property for her own use, as if such wages, earnings, 
 money, chattels and property belonged to her as an unmarried woman ; or any 
 married woman may be sued or proceeded against separately from her husband in 
 respect of any of her separate debts, engagements, contracts or torts as if she were 
 immarried." 
 
 The effect of the Statute of 35 Vic. was discussed in Boustead v. Whitmore 22 
 Gr. 222. In that case the question r.'a8 whether the husband of a married woman 
 
 13 
 
 O XII. 
 
 B.9. 
 
 it 
 
 

 194 JUDICATURE ACT. 
 
 O. XII* would be a necessary party to a suit in which a conveyance of real estate was 
 
 B. 9. sought from the woman, and consequently whether it was necessary for the hus- 
 
 band to join in the conveyance. Proudfoot, V. 0., said : "If the 35 V. c. 16 has 
 made the wife's estate a separate estate ; if it has enabled her to make contracts ; 
 and if it has deprived her husband of any interest in her estate, then the reasons 
 for these decisions failing, there will be no authority in support of this bill. This 
 statute seems to me to strike at all these reasons. For while the former Act only 
 declared that she should hold and enjoy her real estate free from the debts and ob- 
 ligations of the husband as if she continued sole and unmarried, this Act declares 
 that she shall hold and enjoy it for her separate use ; and she is to hold it free from 
 any estate of the husband during her life time, or as tenant by the courtsey, thus 
 depriving him of any interest in her estate ; and it expressly clothes her with the 
 power of making contracts respecting her real estate as if she were a feme sole. 
 This last statute, depriving the husband of any estate in the wife's hands, enabling 
 her to hold it to her separate use, and empowering her to make contracts regarding 
 it, appears to me to bring her estate clearly within the cases cited by the Chan- 
 cellor, establishing what is to be considered separate estate. And there is no 
 restraint on her power of alienation. After some fluctuation of opinion, it has been 
 finally decided tnat a married woman, when not restrained from alienation, has, 
 as incident to her separate estate, and without any express power, a complete right 
 of alienation of that estate by instrument inter vivos or will. The power given to 
 the married woman to make contracts in regard to her real estate affords a strong 
 argument in favour of this construction. She may, without the sanction of her 
 husband, and it may be against his will, agree to sell her real estate ; she may 
 determine the price, and agree upon the terms of pajnaaent, and for these, the most 
 material points in which, if any protection were'required, it would have been given ; 
 and if the Legislature deemed her capable of going so far in the disposition of her 
 property, it is not too much to assume that, for the merely ministerial act of mak- 
 ing a conveyance, they did not mean to incumber her with requiring a needless 
 assent to an inane formality," see also Furness v. Mitchell, 3 App. il. 510. 
 
 See, however, as to the right of a married woman to convey property covered 
 by the Act without her husband joining in the conveyance, the opinion of Patter- 
 son, J., in Furness v. Mitchell, 3 App. R. 524 ; and of Wilson, J., (now C. J.) in 
 Ogden V. McArthur, 36 U. C. R. 246. 
 
 What property is affected by 35 Vic, c. Id and 40 Vic, c 7. schedule A (156), now 
 R. S. O., c 135. — A question arose shortly after the passage of the Statute, 35 Vic, 
 c. 16, as to whether the first section applied to marriages contracted before the 
 passage of the Act. The words were "after the passing of this Act, the real estate 
 of any married woman," etc. In Dingman v. Austin, 33 U. C. 11. 190, it was held 
 that the section applied only to marriages which took place after the Act, see also 
 McCready v. Higgins, 24 U. C. C. P. 233. In Adams v. Loomis, 24 Gr. 24'2, how- 
 ever, a different construction was placed upon the section, and it was held that it 
 applied to cases where lands have been acquired by married women after the pass- 
 ing of the Act, although the marriage took place before the Act came into force. 
 The point next arose in Furness v. Mitchell, 3 App. 11. 510, and the decision in 
 Adams v. Loomis was approved. The Statute of 40 Vic. however transposes the 
 first line, as was suggested by Moss, C. J. A., in Furness v. Mitchell, it would have 
 to be transposed in order that the decision in Dingman v. Austin should be sound. 
 In that Act the words are : — "The real estate of any woman married after the 
 2nd day of March, A.D. 1872," etc.; and other words follow which place it beyond 
 doubt that the date of the marriage, and not of the acquisition of the i)roperty, 
 determines the applicability of the Statute, see Shelley v. Young, 8 P. R. 36, and 
 Godfrey v. Harrison, 8 P. R. 272. 
 
 Separate estates in possession only are covered by R. S. O. , c. 125. — In standard Bank 
 V, Boulton, 3 App. R. 93, the defendant, who was married in 1852, was by virtue 
 of her marriage settlement entitled to the legal estate for life in certain lands after 
 the death of her husband ; and during his life endorsed a promissory note made by 
 him to secure his liability to the plaintiffs. The land had been conveyed, but in- 
 effectually, by the trustee under the settlement, to one B., and the defendant 
 signed with her husband, a declaration that such conveyance was made at their 
 request, to entitle B. to sell the land, and out of the proceeds to pay first the hus- 
 band's debt to the plaintiffs. B. also wrote to the plaintiffs saying that the pro- 
 ceeds of any sale should be so applied. A decree having been made by Blake, V.-C., 
 against the defendant, after her husband's death, to realize the amount out of such 
 land, it was held that such decree must be reversed, for the property in questio 
 
PARTIES. 
 
 195 
 
 was not her separate estate within the meaning of 35 Vic. c. 16, s. 1 O. In •• 3CII» 
 rendering juderment, Moss, C. J. A., said :— "The whole scope of this legislation R. 9. 
 seems to be directed towards estates in which the wife had an immediate posessary , 
 
 interest — estates in which there were, or might be, rents, issues and proiits — estates 
 in which, at Common Law, and, but for special legislation, the husband would 
 have an interest for life, to the exclusion of the wife, and might have a tenancy by 
 con^'^sy after her death. This estate belongs to a very different class, and has 
 none of these characteristics. No legislation was necessary to protect the wife in 
 its enjoyment, for while the coverture lasted it was not in her jpossesBion, but her 
 husband was the person entitled, nor can this properly be said to be real estate 
 owned by the defendant, or acquired by her in any manner during coverture. Her 
 interest, such as it is, depends upon the settlement alone, and had she not sur- 
 vived her husband, she woul'd never have had any right to receive the rents, issues, 
 or profits. Such an interest is within neither the language nor the spirit of the 
 Statute." And Patterson, J. A., said : — "Leaving the Statutes and returning to 
 the marriage settlement, it is clear the lands were not limited to the separate use 
 of the defendant. So to limit lands which she was not to enjoy till after her hus- 
 band's death, he having the enjoyment during his life, would have been a palpable 
 absurdity. Therefore, although in general a married women may hold a reversion- 
 ary interest to her separate use, and may charge it by her general engagements, or 
 by a specific charge — Sturgis v, Corp, 13 Ves. 190 ; Headen v. Rosher, McL. & Y. 
 89 ; Major v. Lamsley, 2 Russ. & M. 355 ; Doune v. Hart, 2 R. & M. 360— in this 
 case the remainder was not separate property, to which the doctrines of Equity, 
 recognizing the^ua disponendi and the power to charge as dkfeme sole, would apply." 
 
 In an action on a promissory note mads by the defendant G., a feme covert, mar- 
 ried after the 2nd March, 1872, without a settlement, and C., her brother, as trus- 
 tees under their father's will, for the purpose of raising money to pay some 
 insurances on the trust estate, it appeared that the testator had devised his real 
 estate to his trustees on trust, to sell such portions as B. should deem expedient, 
 and out of proceeds to pay debts and invest residue, and to expend income in 
 maintenance of the trustees, and his other children, until the youngest should at- 
 tain twenty-one ; and on the youngest attaining that age, an equal division to be 
 made amongst all the children, issue of deceased children to represent their parent: — 
 Held, that until the coming of age of the youngest child, C. had no separate estate 
 available in execution, and that she was not liable on the note. Armour, J., 
 however, in a most able judgment, holding that the true construction of the 
 Married Woman's Property Act is to enable a feme covert to incur debts, to make 
 engagements, and to enter into contracts as if she were a feme sf^le, and that the 
 remedy in respect of any such debts, engagements, contracts, or torts, should be 
 against her personally, and should not depend upon whether she ever had any 
 separate estate or not. Cameron, J., concurred in Mr. Justice Armour's opinion, 
 but felt Ijound by the decided cases to decide otherwise. 
 
 Mecent English cases as to what woperty is affected bit married womari's contract,- - 
 In Pike v. Fitzgibbon, L. R. 14 Ch. D. 837, Malins, V. C, declared that when a 
 married woman creates an obligation upon her separate estate, it extends not only 
 to that which she has at the time but to that which she may in any way acqiiire, 
 and may have at the time when judgment is recovered, including (if her husoand 
 is then dead) estate given to her separate use with a restraint against anticipation. 
 On appeal, however, it was held that covenants of a married woman did not affect 
 any separate estate to which she was not entitled when the covenants were entered 
 into ; nor any separate estate as to which she was restrained from anticipation, S. 
 
 C. W. N. (1881) .'53 (not yet reported in the authorized reports). In Flower v. Pul- 
 ler, L. R. 14 Ch. D. 6fi5, it was held that a married woman can give a valid charge 
 on her expectancy under the will or as one of the next of kin of a living person, 
 and such a charge will be enforced after that person's death against separate estate 
 bequeathed by his will to the married woman. To an action to enforce such a 
 charge the trustees of the will are not necessary parties. This case, however, it 
 must be obsered, followed Pike v. Fitzgibbon {ante), as decided by Malins, V. C, 
 and before its reversal in appeal. See also Atwood v. Chichester, L. R. 6 Q. B. 
 
 D. 722 ; Robinson v. Pickering, W. N. (1881), 30. 
 
 Separate engagements, contracts or torts.— The Con. Stat. U. C. c. 73 did not 
 enlarge a married woman's capacity to contract. Even if she were the owner of 
 property which came under the protection of that enactment and was in that sense 
 separate she was not liable to be sued upon her contracts, per Moss, C. J. A. in 
 Darling v. Rice, I'App. R. p. 62, but see Lawson v. Laidlaw, 3 App. S. 77. The 
 
 
 
 
 i ^' ■■ 
 
 
 1 
 
 1 
 
 i; 
 
 jsd 
 
 
 ■ 
 
196 
 
 JUDICATURE ACT. 
 
 ». XII. 
 K.9. 
 
 I 
 
 Statute permitting actions at law to be brought was 36 V. c. 16 sec. 1, the closing 
 words of which are, " and any married woman shall be liable on any contract made 
 by her respecting her real estate, as if she were a /eme ade ; *' and sec. 9, the last 
 words of which are "and any married women may be sued or proceeded against 
 separately from her husband in respect of any of her a&parate debts, engagemenU, 
 cmitractt or t&rta as if she were unmarried." Tne effect of this Statute was stated 
 by Moss, C. J. A., in Darling v. Rice, 1 App. R. as follows :— " I think the object 
 of this provision was to render it unnecessary any longer to join her husband as a 
 defendant, when a suit was brought upon any separate engagement or contract 
 binding upon her. In my opinion it should not be construed as extending her 
 Xrawer to contract, but as deHning the procedure which may be adopted when a 
 suit or proceeding is conducted against her upon a contract or engagement on 
 which she is liable. It did not make her liable upon every contract or engagement 
 which she made apart from her husband, but shut the door against the objection 
 that her husband should be a pr.rty when she or her property was sought to be 
 made liable upon a contract or engagement which by any statute or equitable 
 doctrine she was empowered validly to make : " and by Gwynne, J., in Merrick v. 
 Sherwood, 22 U. C. C. P. 480, as follows : "The ninth section of the Act, as it 
 seems to me, is to be construed as simply giving the appropriate remedies both to 
 and against a married woman, which it was but just and proper should exist in 
 connection with her altered status under the Act. Coupled therefore with the 
 remedies to her for the recovery of the property, by this or any other Act declared 
 to be her separate property, including therefore retrospective proptrty accruing 
 under sec. 6 of Consol. Stat. U. 0. Oh. 73, the section provides suitable remedies 
 against her, namely, that she may be sued separately from her husband, an if slie 
 were unmarried, for her separate debts, engagements, contracts and torts ; thereby 
 enabling her to be sued at law as if she were sole in respect of a debt, whereas 
 before the Act she could only have been sued in equity, and with respect to her 
 torts, to be sued alone, whereas before the Act she could only have been sued 
 jointly with her husband. The subject matter of this action is a separate debt or 
 engagement of the defendant in respect of which this ninth section now says she 
 may be sued at law as a feme sole." This section was held to apply to debts con- 
 trac^^ed before the Act, Merrick v. Sherwood, 22 U. C. C. P., 467. 
 
 Enfmxing Judgment against Separate Estate. — In Field v. McArthur, 27 U. 0. 
 C. P. at p. 20, Gwynne, J., said ; " Since the passing of this Act, it appears to me 
 that in actions brought against a married woman, sued separately from her husband, 
 iu respect of separate property enjoyed by her, to her own use, the form of our 
 judgment should be similar to that which would be pronounced in Equity, namely, 
 that it should be against the separate property by directing a sale of it, or so much 
 thereof, if saleable, as will satisfy the plaintiff's demand or by way of charge upon 
 the property ; and that, therefore, if there be no such property shewn to exist out of 
 which satisfaction of the plaintiff's demand can in whole or in p^.rt be obtained, there 
 can be no judgment in favour of the plaintiff, but he must be nonsuited. And when 
 it appears that the property of the married woman is vested in trustees, upon special 
 trust to her use, it will in my opinion, be necessary that the trustees should be 
 made parties defendants, in order that an effectual judgment should be pronounced, 
 for although the statute expressly authorizes the wife to be sued separately from 
 her husband in such cases, it does not authorize property which is vested in trustees 
 upon special trusts for her use, to be sold upon an execution, issuing upon a judg- 
 ment ootained against the cestui que trust alone." 
 
 In Lawson v. Laidlaw, 3 App. R., p. 91, Patterson, J. A., said:— "As to the 
 judgment, I a^ee with Mr. Justice Gwynne in the suggestion made in Field v. 
 McArthur, 27 U. C.IC. P. 15, that it should be a decree charging the separate estate. 
 Taking as a guide tne form of decree in Picard v. Hine, L. R. 5 Chy. App. 274, the 
 judgment may be that the plaintiff do recover out of the separate property of 
 Catharine Laidlaw, which was at the date of the promissory note and is at the 
 present time vested in her, or in any other person in trust for her, the sum of 
 $ rthe amount of the note and interest], and $ for coste taxed, 
 
 making in all the sum of $ , with which sum the said separate property 
 
 is hereby charged. The question of execution may perhaps occasion embarrass- 
 ment, but so it often does when the defendant is sui Juris. In the case of tangible 
 property, I see no reason why the sheriff should not seize it on »fi. fa.; any ques- 
 tion of ownership being decided as in ordinary cases by interpleader or otherwise. 
 It property is uf a different sort, as money or stocks held by trustees or in the 
 woman's own name, it may be reached by tne process in use in equity or at law as 
 the case may require. 
 
PARTIES. 
 
 197 
 
 Oollett V. Dickenson, L. B. 4 Ex. D. 285, waa an action brought against a mar- 0» XII. 
 ried woman for debt contracted with a creditor who believed her to be a feme tdU. R 9. 
 She pleaded coverture, and the husband was then made a party. It was alleged 
 that she had separute estate. At the trial it was declared that her separate ostate 
 wab chargeable with payment of the debt and costs, and an inc|uiry was directed 
 to ascertam of what her separate estate consisted, and in whom it was vested. In 
 the answer to the inquiry tne Master certified that the separate property consisted 
 of an annuity, secured by the covenant of the husband contained in a separate 
 deed and vested in a trustee. On summons by the plaintiff to shew cause why 
 he should not be at liberty to sign judgment and the trustee not being a patty :— 
 Held that the Court could, only make an order declaring the debt (with interest), 
 and the taxed costs of the plaintiff to be a charge upon the annuity, but without 
 prejudice to any claim by the trustee. 
 
 Torfa.— Under the Act of 35 Vic, Mr. Dalton held that a married woman 
 might be the sole defendant in an action of ejectment, her husband being perma- 
 nently resident out of the jurisdiction. The wrongful possession being a " separate 
 tort," Warren v. Cotterell, 6 P. R. 11. In Amer v. Rogers, 31 U. C. C. P., 195, 
 Oder, J., held that in an action for tort, committed by a wife during coverture, the 
 husband was not a proper party but the wife must be sued alone. 
 
 Next fi-iend. — The next friend of a married woman must be a person of substance, 
 Rann v. Lawless, 1 Oh. Oh. R. 333 ; Van Winkle v. Chaplin, 2 Ch. Ch. R. 98. One 
 married woman can act as next friend for another, Giles v. Benjamin, 6 P. R. 70. 
 If no next friend is named the proper motion is to stay all proceedings until one is 
 named, McPhersnn v. McCabe, 1 Ch. Ch. R. 2.50 ; so also if the next friend be a 
 person of no substance the motion is to stay proceedings until one of substance be 
 named, Rann v. Lawless, 1 Ch. Ch. R. .333 ; see also Stovel v. Coles, 3 Ch. Ch. R. 
 421 ; Leishman v. Eastwood, 2 Ch. Ch. R. 88. 
 
 (a) In cases not thus provided for, married women may sue 
 as plaintiffs by their next friends in manner practised in the 
 Court of Chancery before the passing of the Act. 
 
 98. 
 
 10. Where there are numerous parties having the same 
 interest in one action, one or more of such parties may sue or 
 be sued, or may be authorized by the Court to defend, in such 
 action, on behalf of, or for the benefit of, all parties so interested. 
 
 See Eng. R. Sup. C, O. XVI.. r. 9 ; G. O. Chy., Nos. 58-61. 
 
 This order embodies the practice which the Court of Chancery has always fol- 
 lowed ; for example, where the plaintiff files a bill on behalf of himself and all others, 
 the creditors of the defendant or all others, the members of a Joint-Stock Company, 
 Daniell Ch. Pr. 172 ; Bromley v. Williams, 32 Beav. 177 ; Woodbridge v. Noms, 
 L. R. 6 Eg. 414 ; Atwool v. Merry weather, L. R. 5 Eq. 464, note ; Hoole v. Great 
 Western Railway Co., L. R. 3 Ch. app. 262. 
 
 Thequettum whether the pertons not made parties would he bound by the proceedings 
 came up in Smith v. Doyle, 4 App. R. 471. In that case to a bill filed by the 
 assignee of Patrick Doyle for the creditors, other than Dennis and James Sadlier, 
 to impeach a sale of real estate to the defendant, the answer set up that before the 
 proceedings in insolvency a bill was filed by Dennis and James Sadlier, as execution 
 creditors, on behalf of themselves and all other creditors who should contribute to 
 the expenses of the suit, for the purpose of avoiding the conveyance in c^uestion as 
 a fraud upon creditors, Hand that the bill was dismissed upon the merits ; it was fur- 
 ther alleged, that the case made by the two bills was substantially the same, and 
 that the defendant believed that the evidence in this suit would be similar in effect 
 to that upon which the decree refusing relief was founded: — Held, reversing the 
 '^^ nentof the Court of Chancery, that the decree was not a bar to this suit. 
 
 0. J. A., said : — " The Sadliers did not represent the rights with which the 
 assignee is now invested. Although their bill, to use the phraseology of the answer 
 in this suit, purport to be on behalf of themselves and the other creditors who 
 should contribute to the expenses of the suit, they did not and could not represent all 
 
 
198 
 
 JUDICATURE ACT. 
 
 •• XII. the creditors of Patrick Doyle ; no creditor but those who had put their claims into 
 
 Mm !•• judgment could obtain any benefit from their success. There was no way in which 
 
 creditors who had not proceeded to execution could come in even if a decree had been 
 
 obtained, no other creditors were affected, except those who might have, after decree, 
 
 elected to prove in the Master's office upon their executions, and who would then be 
 
 Prevented from proceeding with an independent suit. But even an execution creditor 
 ad no avenue for obtaining access to the suit until after a decree setting aside the 
 conveyance, while there was no place at any time for creditors who had not taken 
 proceedings at law. The plaintiffs might have compounded with the defendants, 
 or dropped their suit without the slightest reference to other creditors. It does not 
 seem to require any elaborate argument to shew that a decree in a suit bearing thi» 
 character lacks the essentials of a judgment recovered. The only English case 
 that I have succeeded in finding which presents even a semblance of supporting the 
 contention is Barker v. Walters, 8 Beav. 92. The question before Lord Langdale 
 was, whether a bill was sustainable which had been filed by three directors of a 
 company or association on behalf of themselves and all other members, with the 
 usuM averment that the number was so large that it was impossible with reason- 
 able convenience to join them as parties. In dealing with this, his Lordship consi- 
 dered the objection that, if such a suit were permitted, other shareholders might 
 bring similar suits, and the defendant might be harassed and oppressed. In 
 answer to this, the learned Judge said in substance, that it was his impression that 
 if an unincorporated company gave its directors certain powers, and they incurred 
 certain obligations towards others, and brought a suit for the I enetit of themselves 
 and all the members, the Court would prevent any other members from bringing a 
 similar suit. But the want of similarity between that case and the present is quite 
 obvious, nor is the case of Commissioners, etc., of London v. Gellatly, 24 W. R. 
 1059, at all analogous. It only decides that when a decree is made upon a bill es- 
 tablishing a right, it is binding upon a person not a party to the suit, who belongs 
 to the class which the defendant represented, unless he can shew some good reason 
 why he should not be bound. The principle is, that it is of the very essence of such 
 a suit that the defendant should in the opinion of the Court, adequately represent 
 the class, and that until satisfied upon this point, the Court will not proceed to an 
 adjudication ; but that, when satisfied, the Court will determine the right without 
 requiring every individual in the same interest to be brought before it. In shorty 
 the very object of such a bill is to prevent the multiplicity of suits." 
 
 In Williams v. Salmond, 2 K. & J. 463, it was said that liberty to sue on behalf 
 of oneself and other persons who are too numerous to be brought upon the record, 
 is dependent neither upon the discrption of the Court nor upon the disposition of 
 such other persons to concur in the suit. But if such other persons have an interest 
 which might be affected in case the suit were allowed to proceed as on their behalf 
 at the instance of the plaintiff, or if full justice cannot De done to the defendants 
 without barring all such persons personally upon the record, the Court will not 
 allow the suit to proceed. 
 
 The former practice was only permissible in cases where the number represented 
 was so large that it was impossible, with reasonable convenience, to join them as 
 parties, Barker v. Walters, 8 Beav. 92 ; Commissioners of Sewers of the City of 
 London v. Gellatly, L. R. 3 Ch. D. 610, The above rule does not limit the new 
 practice in this way, and it cannot be said that it's effect has been as yet fully 
 ascertained. In DeHart v, Stevenson, L. R. 1 Q. B. D. 313, a writ was issued by 
 the plaintiff ' ' on behalf of himself and numerous parties having the same interest. 
 The claim was by the plaintiff, on behalf of himself and the other owners of a ship, 
 against the defendants for freight and dues for the use of the ship. The defendants 
 applied to add the names of the other owners as plaintiffs, under O. XVL, r. 13, 
 (Ont. O. XII. r. 15 {a) ), on the ground that the case was not within rule 9 (Ont. 
 r. 10), and also in order that the defendants might have the liability of the other 
 owners, as plaintiffs, for costs :— Held, that the action was rightly brought by a 
 single plaintiff, under rule 9 (Ont. r. 10), and that the case was not within rule' 13 
 (Ont. r. 15r«y»). 
 
 In all cases for the protection of property pending litigation and in all cases in 
 the nature of waste, one person may move on behalf |of himself and of all persons 
 having the same interest, G. 0. Chy., No. 58, r. 5. 
 
 For the rules in administration suits, see G. O. Chy., Nos. 68-61, quoted in notes 
 to r. 14 of this Order. 
 
 The writ should be endorsed with a claim of the plaintiff "on behalf of himself 
 and all others the etc.," Cooper v. Blissett, L. R. 1 Ch. D. 691; Worri^er v. Pryer, 
 li. B. 2 Ch. D. 109 ; /« Royle ; Fryer v. Royle, L. R. 5 Ch. D. 640. 
 
PARTIES. 
 
 199 
 
 99. 
 
 11. In any case in which the right of an heir-at-law or of the o. xii. 
 next of kin, or of a class shall depend upon the construction *• "• 
 which the Court may put upon an instrument, and it shall not 
 
 be known or shall he difficult to ascertain who is or are such 
 heir-at-law or next of kin or class, and the Court shall consider 
 that in order to save expense or for some other reason it will be 
 convenient to have the question or questions of construction 
 determined before such heir-at-law, next of kin or class, shall 
 have been ascertained by means of inquiry or otherwise, the 
 Court may appoint some one or more person or persons to 
 represent such heir-at-law, next of kin or class, and the judg- 
 ment of the Court in the presence of such person or persons 
 shall be binding upon the party or parties or class so repre- 
 sented. 
 
 See Eng. R. Sup. C. June, 1876, r. 7. 
 
 Where, upon the construction of a will, questions had arisen as to what classe 
 of representatives of the testator were entitled, and great difficulty was foreseen in 
 attempting to find the heir, who in the result might be held not entitled, the 
 Court made an order under the rules of 26th June, 1876, Order XVI., rule 7 
 (Ont. 0. XII., r. 11), appointing persons to represent the various classes of repre- 
 sentatives, of which some one might be held to be entitled, before the questions o 
 construction came to be decided. In re Peppitt's estate, Chester v. Phillips, L. H. 
 4 Ch. 1). 230. 
 
 For form of order, see Ibid : Hobbs v. Reid, W. N. (1876) 95. 
 
 The Court may in auy suit or proceeding, where it is made to appear that a 
 deceased person, who was interested in the matter in question, has no legal per- 
 sonal representative, either proceed in the absence of any person representing the 
 estate or may appoint some person to represent such estate, and that notwithstand- 
 ing that the estate in question may have a substantial interest in the matters, ur 
 that there may be active duties to perform by the person so appointed, or that he 
 may represent interests adverse to the plaintiff, or that there may be embraced in 
 the matter an administration of the estate whereof representation is sought, R. S. 
 0., c. 49, 8. 9. 
 
 100. 
 
 12. Any two or more persons claiming, or being liable as, 
 co-partners, may sue or be sued in the name of their respective 
 firms, if any ; and any party to an action may in such case 
 apply by summons to a Judge for a statement of the names 
 of the persons who are co-partners in any such firm, to be 
 furnished in such manner, and verified on oath or otherwise, 
 as the Judge may direct. 
 
 SeeEng. R. Sup. C, O. XVI., r. 10. 
 
 See all the rules relating to partners as parties to actions collected in note to 
 O. rV., r. 2 (6). -» »- 
 
 Quare, whether in all cases it is competent to sue a firm under this rule, as 
 where there has been an entire change in the constitution of the firm, although the 
 name has been continued, ex parte Blain, re Sawers, 12 Ch. D. 622. 
 
 For forms of order, see Forms, No. 120. 
 
 I 
 
 f* 
 •<•• 
 
 
200 
 
 JUDICATURE ACT. 
 
 O. XII. 
 B.1S. 
 
 101. 
 
 13. Any person canying on busineas in the name of a firm, 
 apparently consisting of more than one person, may be sued in 
 the name of such firm. 
 
 See Eng. R. Sup. C, June, 1876, r. 8. 
 See notes to preceding order. 
 
 
 
 1013. 
 
 14. Subject to the Act and these Rules, the provisions as to 
 parties, contained in Orders 58, 59, 60 and 61 of the General 
 Orders of the Court of Chancery, shall be in force as to actions 
 in the High Court of Justice. 
 
 See Eng. R. Sup. C, 0. XVI., r. 11 ; Imp. Act, 15 & 16 Vic, c. 86, s. 42 ; G. 
 O. Chy., No. 68. 
 
 The Orders of the Court of Chancery mentioned in this rule are as follows : — 
 
 Order 58. It shall not be competent to a defendant to take an objection for 
 want of parties in any cad^e to which the seven rules next hereinafter set /orth apply. 
 
 Rule 1. A residuary legatee or next of kin may have a decree for the adminis- 
 tration of the personal estote of a deceased person, without serving the remaining 
 residuary legatees or next of kin. 
 
 Rule 2. A legatee interested in a legacy charged upon real estate, or a person 
 interested in the proceeds of real estate directed to be sold, may have a decree for 
 the administration of the estate of a deceased person, without serving any other 
 legatee or person interested in the proceeds of the estate. 
 
 Rule 3. A residuary devisee or heir may have the like decree without serving 
 any co-residuary devisee or co-heir. 
 
 Rule 4. One of several cestuia que trutt, under a deed or instrument, may have 
 a decree for the execution of the trusts of the deed or instrument, without serving 
 any other of such cestuis que trust. 
 
 Rule 6. In all cases of suits for the protection of property pending litigation, 
 and in all cases in the nature of waste, one person may move on behalf of himself 
 and of all persons having the same interest. 
 
 Rule 6. An executor, administrator, or trustee may obtain a decree against any 
 one legatee, next of kin, or cestui que trust for the administration of the estate, or 
 the execution of the trusts. . 
 
 Rule 7. An assignee of a chose in action may institute a suit in respect thereof 
 without making the assignor a party thereto, 
 
 Ord. 59. In all the above cases the Court, if it sees fit, may require any other 
 person to be made a party to the suit, and may, if it sees fit, give the conduct of 
 the suit to such person as it deems proper ; and may make sucn order in any par- 
 ticular case as it deems just for placing the defendant on the record on the same 
 footing in regard to costs as other parties having a common interest with him in 
 the matter in question. 
 
 Ord. 60. In all the above cases the persons who, according to the practice of the 
 Court, would be necessary parties to the suit, are to be served with an office copy 
 of the decree (unless the Court dispenses with such service) endorsed with tne 
 notice set forth in schedule A, hereunder written, and after such service they shiJl 
 be bound by the proceedings in Ihe same manner as if they had been originally 
 made parties to the suit ; and upon service of notice upon the plaintiff, they may 
 attend the proceedings under the decree. Any ]^arty so served may apply to the 
 Court to add to, vary, or set aside the decree, within fourteen days from the date of 
 such service. 
 
PARTIES. 
 
 201 
 
 Ord. 61. In all suits concerning real or personal estate which is vested in •• -Ml. 
 trustees under a will, settlement, or otherwise, the trustees shall represent the B. 14. 
 persons beneficially interested under the trust, in the same manner and to the same 
 extent as executors or administrators, in suits concerning personal estate, represent 
 the person beneficially interested in such personal estate ; and in such case it shall 
 not be necessary to make the persons beneficially interested under the trust parties 
 to the suit ; but, on the hearing, the Court, if it thinks fit, may order such persons, 
 «r any of them, to be made parties. 
 
 Where residuary devisees, who had died abroad before the institution of the 
 suit, were made paities in ignorance of their death, the suit may be proceeded 
 with, without making their real representatives parties, Bateman v. Cooke, 1 W. R. 
 242. 
 
 Decree for the appointment of new trustees and conveyance of the trust 
 estate, in a suit by some of the cestuis que trmt, and a direction to serve the others 
 with notice of the decree, Jones v. James, 9 Ha. app. 80. Money recovered from 
 a trustee in a suit by cestui que trust to repair breach of trust as to one share of the 
 trust estate, McLeod v. Annesley, 16 Beav. 600. 
 
 If the whole fund be not forthcoming, owing to a breach of trust, a party 
 entitled to a moiety, although ascertained, cannot sue for payment without mak- 
 ing the person entitled to the other moiety a party, Lenaghan v. Smith, 2 Phill. 
 301 : Munch v. Cockerell, 8 Sim. 219. Where cestuis que trust by their conduct have 
 made themselves trustees, they ought to be parties, Jesse v. Bennett, 6 D. M. & 
 
 «. 609. 
 
 ■■•--.. » i_ , 
 
 103. 
 
 15. No action shall be defeated by reason of the misjoinder 
 of parties, aud the Court may in every action deal with the 
 matter in controversy so far as regards the rights and interests 
 of the parties actually before it. 
 
 See Eng. R. Sup. C, O. XVI., r. 13; G. O. Chy. No. 53. 
 
 Two cognate rules may be considered with this one :— O. XV., r. 18, provides 
 that "No plea or defence shall be pleaded in abatement ;" and O. XII., r. 2, as 
 follows : — 
 
 Where an action has been commenced in the name of the wrong person as plain- 
 tiff, or where it is doubtful whether it has been commenced in the name of the right 
 plaintiff or plaintiffs, the Court or a Judge, if satisfied that it has been so commenced 
 through a bona fide mistake, and that it is necessary for the determination of the 
 real matter in dispute so to do, may order any other person or persons to be substi- 
 tuted or added as plaintiff or plaintiffs, upon such terms as may seem just. 
 
 The first part of the above rule (15) is an extension of G. 0. Chy. No. 53, by 
 which no suit was to be dismissed by reason only of the misjoinder of persons as 
 plaintiffs therein. That Order was held to apply to plaintiffs not named, as where 
 A shareholder files a bill on behalf of himself and others, Clement v. Bowes, 1 Drew. 
 684; but not where full justice cannot be done to the defendants, Williams v. 
 Sahnond, 2 K. &. J. 463. 
 
 " Bom fide inittaJce."~It will be observed that while, under rule 2 of this Order' 
 the power of the Court to substitute or add to plaintiffs is limited to cases in which 
 there has been a bona fide mistake, the same power is given by rule 15 without any 
 such limitation. Dnder this Order it is necessary to shew two things, (1) a bona fide 
 mistake, and (2) that the amendment is necessary for the determination of the real 
 matter in dispute. An application failing in one of these particulars may yet be 
 successful under rule 16 of this Order, Smith v. Haseltine, W. N. (1875) 250 ; 
 but see Qowes v. Hilliard, L. R. 4 Ch. D. 413. In Duckett v. Grover, L. R. 6 
 Ch. D. 82, after the allowance of a demurrer for want of parties plaintiff, leave 
 was given to amend by adding a defendant as a co-plaintiff without any affidavit 
 of mistake, and it was held that the words " bona fide mistake " include a mistake 
 w law as well as of fact, (and see Val de Travers Companv v. London Tramway 
 Company, W. N. (1879) 46). After the amendment had been made' another 
 oefenduit moved to strike out the name of the Company so added :— Held, that 
 the motion was wrong as such a motion could only be made by the company itself. 
 
M'ff 
 
 Hi 
 
 I 
 i'(- 
 
 sot 
 
 O. XII. 
 B. IS. 
 
 
 
 JUDICATURE ACT. 
 
 S. C. 26, W. R. 564, In Turquanci v. Fearon, 27 W. R. 390, however, It was held 
 that where the plaintiff nioves to add a party plaintiff the Court will require proof 
 of the consent of auch i>er8on ; and that the objection that there is no such proof 
 may be taken by the defendant. 
 
 An alteration in the parties to an action will not be made on an ex parte appli- 
 cation, Tildesley v. Harper, L. R. 3 Ch. D. 277. 
 
 •' Necessary for the determination of the real matter in dispute " — " Ought to have 
 been Joined."— Any one who could have been properly joined at the commence- 
 ment of the action — who, " in order to do justice, ought to be joined, is included 
 under these words, Edward v. Lowther, 34 L. T. N. S. 266 ; Honduras Rr. Co. v, 
 Lefevre, L. B. 2 Ex. 301. Amendments will be made in the interests of juHtice 
 only and not to assist a merely technical right, Collette v. Goode, L. K. 7 Ch. D. 
 847 ; Noad v. Murrow, 40 L. T. N. S. 100 ; Corby v. Cotton. 3 U. C. L. J. 60 ; 
 McKenzie v. Vansickles, 17 U. C. R. 226 : and not if the efifect will be to make 
 the pleading demur Jible, Bank of Upper Canada v. Ruttan, 22 U. C. R. 451. 
 
 "All the questions involved in the action." — In Harry v. Davey, L. R. 2 Ch. D. 
 721, B. agreed to purchase freehold hereditaments of A., who purported to sell 
 under a power of sale contained in a mortgage to A., by C, as trustee and executor 
 of the will of D. After acceptance of the title, and preparation of the conveyance, 
 B. received formal notice from unpaid residuary legatees of D. of a claim by them 
 to the property c(mtracted to be sold. In an action by A. for specific performance 
 of the agreement, a motion by B., that the residuary legatees, who had given 
 notice of their claim, might be added as defendants to tne action, was refused with 
 costs, as no question arose which, for the purpose of being effectually adjudicated 
 upon and settled, required that tnese residuary legatees should be added as parties. 
 
 Misjoinder. — As fb misjoinder in a suit by some shareholders to recover money 
 ^vrongfully paid to defendants and other shareholders, see Williams v. Page, 24 
 Beav. 654 ; as to parties to suits by shareholders generally, see Carlisle v. South 
 Eastern Railway Co., 1 M. & G. 689^ as to misjoinder in a suit impeaching a set- 
 tlement of accounts of an association, Stupart v. Arrowsmith, 3 Sin. & G. 17(i. 
 Bill dismissed where only one of the plaintiffs had an interest to maintain the suit, 
 and that interest was not claimed by the bill. Barton v. Barton, 3 K. & J. 51!?. 
 
 See also Evans v. Coventry, 3 Drew. 76, 5 D. M. & G. 911 ; Beechi ' r. oyd, 
 
 3 Drew. 227; Carter v. Sanders, 2 Drew. 248; Mendes v. Gue^l " R, 
 
 486 ; Betts v. Thompson, L. R. 6 Chan. App.735: Umfreville v. J ^. K. 10 
 Chan. 580. 
 
 Where a plaintiff is struck out after the defendant has appeareu i? continuing 
 plaintiff must give security for costs, Fellowes v. Deere, 3 Beav. 6oA , Drake v. 
 Symes, 3 D. F. & J. 491. 
 
 One of several co-owners has a right to sue alone for the recovery of profits due 
 for the use of the patent, Sheehan v. Great Eastern Railway Company, L. R. 1^ 
 Ch. D. 59. 
 
 One of several mortgagees can maintain an action to foreclose the mortgage, 
 making the others co-defendants if they are unwilling to be joined as co-plaintiBs, 
 or have done some act precluding them from being plaintiffs, Luke v. South Ken- 
 sington Hotel Company, L. R. 11 Ch. D'" 
 7 Ch. D. 789. 
 
 121 ; reversing on appeal, S. C. L. R. 
 
 Where it appeared that the plaintiffs had no cause of action leave to add others as 
 co-plaintiffs who had, was refused, New Westminster Brewery v. Hannah, W. N. 
 (1876) 215 ; in appeal W. N. (1877) 35. But where the plaintiffs sued in their 
 individual names, describing themselves as trustees of the Wesleyan Methodist 
 Church of Brussels, an amendment was allowed at the trial by striking out the 
 names and allowing them to sue as a corporation, under C. S. U. C. c. 69, The 
 trustees of the Ainley ville Congregation of the W. M. Church v. Grewci, 23 U. C. 
 C. P. 533. 
 
 For other cases, see Wilson v. Church, L. R. 9 Ch. D. 552 ; Williams v, 
 Andrews^W. N. (1875) 237 ; Cormack v. Geofrian, W. N. (1876) 22 ; Keate v. 
 Phillips, W. N. (1878) l86 ; Roberts v. Evans, L. R. 7 Ch. D. 830. 
 
 Any defendant to he added must be a person against whom the plaintiff has some 
 cUiim, which ought to be determined in the action.— Norris v. Beazley, L. R. 2 C. P. D. 
 80, shews this very clearly. The position of parties appears from the following 
 extract from the judgment of Coleridge, C. J. :— "It is said that the present de> 
 
PARTIES. 
 
 208 
 
 fendant is a nominal defendant, that the Niger Merchants Company, the parties O. XII* 
 really interested, have a large claim against the plaintiffs in respect of a matter b. IS. 
 including this £500 bill sued upon, which, if the action were against the com)>any, 
 would be an answer to it, and that the defendant is ip truth merely a trustee for 
 the company. I should have thought, if the matter stood on the earlier part of 
 the rule alone, that it was under those circumstances reasonably necessary, in order 
 to enable the Court effectually and completely to settle the question involved, to 
 bring the Niger Merchants Company before the Court. But the plaintiffs' counsel 
 has directed our attention to the subsequent portions of the rule. It is provided 
 that ' no person shall be added as a plaintiff suing without a next friend, or as the 
 next friend of a plaintiff under any disability, without his own consent thereto.' 
 Now this, although it is not a case of making a person a plaintiff against his will, 
 is certainly the case of making a person a plaintiff in respect of a defendant as to 
 whom he does not desire to be a plaintiff without his consent, but the succeeding 
 words are stronger : ' All parties whose names are so added as defendants shall be 
 served with a summons, etc. , and the proceedings against them shall be deemed to 
 have begun only on the service of such summons.' It seems to me to be cor- 
 rectly argued that those words plainlv imply that the defendant to be added must 
 be a defendant against whom the plaintiff has some cause of complaint, which 
 ought to be determined in the action, and that it was never intended to apply where 
 the person to be added as defendant is a person aghinst whom the plaintiff has no 
 claim, and does not desire to ])rosecute anv. It seems to me that the application 
 is answered, and that it was not intended tnat persons in the position of tliis com- 
 pany should be added as defendants, merely for the convenience of another de- 
 fendant between whom and the company there may be questions which will after- 
 wards have to be settled. It seems to me that it is the more important to construe 
 this rule strictly, because it is obvious that in many cases, if tne defendant's con- 
 tention is right its provisions might be made use of in a manner exceedingly harass- 
 ing to plaintiffs, by forcing them to include in their actions persons agamst whom 
 they do not seek to proceed, and to mix up their rights, as against one person, with 
 questions of a highly complicated nature arising between themselves and others." 
 
 An order was made at the trial to add as a co-defendant a person to whom the 
 defendant had assigned his interest pendente lite, Kino v. Rudkin, L. B. 6 Ch. D. 
 160. 
 
 In an action against a corporation, where an officer of the corporation against 
 whom no relief was claimed was made a party for the purpose of discovery : — Held, 
 that he was improperly joined and that his name should be struck out, Wilson v 
 Church, L. R. 9 Ch. D. 562. 
 
 In DeHart v, Stevenson, L. R. 1 Q. B. 313, a suit was brought by one of several 
 owners of a ship for freight on behalf of himself and his co-owners. An applica- 
 tion was made by the defendant under this Order to add the other owner as co- 
 plaintiffs in order that they might be liable for the costs of the action. The appli- 
 cation w ^ refused. Plaintiffs can only be added upon their own consent. 
 
 Whfci o two actions had been ordered to be consolidated, on an application by the 
 plaintiffs to add new defendants to the consolidated action before trial, and to make 
 W. one of the original defendants, a party to the action in a representative char- 
 acter, the Court ordered that the proposed new defendants should be added without 
 service of any writ, and thatW. be made a defendant in his representative character 
 without any further indorsement on the writ ; such order to take effect unless the 
 new dt ndants and W. should respectively shew cause to the contrary within eight 
 days after service, re Wortley, Culley & Wortley, L. R. 4 Ch. D. 180. 
 
 In Long V. Crossley, L, E. 13 Ch. D. 388, an action was brought to compel the 
 defendants specifically to perform an a^eement into which they had entered to 
 accept a lease of a coal mine from the plamtiff. When the agreement was entered 
 into, and when the action was commenced, it was supposed that the plaintiff was 
 tenant for life of the property under the will of her nusband, and that she had a 
 power of leasing. After notice of trial had been given the plaintiff died, and her 
 executor obtained the common order of revivor. After this it was discovered that 
 the plaintiff was tenant for life of the property under her marriage settlement, and 
 that she had no power of leasing. She had signed the agreement " for myself and 
 toose entitled after me," though this did not appear in the statement of claim, 
 ^e persons entitled in remainder, of whom the executor was one, desired to adopt 
 the action and to be added as co-plaintiffs, alleging that the agreement had been 
 ^tored into with their knowledge and approbation :— Held, that rule 13 of order 
 XVL of the Rules of Court, 1875 (Ont. O. XII. r. 16) applied, and that the 
 
 CD 
 > 
 
204 
 
 JUDICATURE ACT. 
 
 ■ iSs' 
 
 
 •• Xli^ remt^ndermen must be added as co-plainti£Fs with the executor in his representative 
 
 B. !«• capacity. 
 
 Oifjeetiaru for want of parties thovld he made promptly and may not be postponed 
 till the hearing where no impediment exists to raising the objection at once, Sheehan 
 V. Great Eastern Railway Co., L. R. 16 Ch. D. 69. 
 
 Oeneral order to amend.— Striking out parties.— Under an order to strike out the 
 name of one defendant and gi^ ing general libertv to amend, the plaintiff is not 
 justified in striking out the name of another defendant, Wymer v. Dodds, L. R. 11 
 Ch. D. 436. A party plaintiff may be added under a praecipe order to amend. 
 Neitj>\er a party plaintiff nor a party defe9dant can be struck out under an order to 
 amend obtained ex parte, Dunn v. McLean, 6 Fr. R. 97 ; and see Elwon v. V aughan, 
 W. N. (1879', 69. 
 
 Form of order. — In Marquis of Londonderry r. Rhoswydol Lead Mining C<i., 
 W. N. (1879) 136, an order was drawn up as folfows : — "Order that the plaintiff be 
 at liberty to amend his writ of summons and statement of claim by addmg Robert 
 Girwood and George Green as defendants, with proper statements to charge theui. 
 And it is ordered that the said Robert Girwood and George Gieen have power to 
 make defence as if the writ had been served upon them at the date of such amend- 
 ment. The costs of the plaintiff and defendants of the said order, dated the 2lKt 
 of May, 1879, are to be costs in the action, and it is ordered that the plaintiff pay 
 the defendants their costs of this application." It was contended that it should be 
 amended by striking out the words after "George Green" and down to the word 
 ' ' amendment, " and to insert ' ' on being respectively made defendants in this action, 
 shall be in the same position and have the same rights as they respectively would 
 have had if this action had been commenced against them at the date of the amend- 
 ment, and date of service on them, of the said amended writ of summons." The 
 Vice-Chancellor held that the order as drawn was in proper form. 
 
 Vacating order. — A defendant improperly added as a party may move to strike 
 out his name, notwithstanding that he has delivered nis statement of defence, 
 Vallance v. Birmingham Land Corpora. . . n, L. R. 2 Ch. D. 369, and see Aberaman 
 Iron Works v. Wickens, L. R. 4 Ch. \, f. 101. 
 
 Other aTmndm£nts.—BeQ notes to O. XXIII., r. 1. 
 
 (a) The Court or Judge may, at any stage of the proceed- 
 ings, either upon or without the application of either party, 
 and on such terms as may appear to the Court or a Judge to 
 be just, order that the name of any party, whether as plaintiff 
 or as defendant improperly joined, be struck out, and that the 
 name of any party, whether plaintiff or defendant, who ought 
 to have been joined, or whose presence before the Court may 
 be necessary in order to enable the Court effectually and com- 
 pletely to adjudicate upon and settle all the questions involved 
 in the action, be added. 
 
 (h) No person shall be added as a plaintiff suing without 
 a next friend, or as the next friend of a plaintiff under any 
 disability, without his own consent thereto. 
 
 (c) All parties whose names are so added as defendants shall 
 be served with a notice in manner hereinafter mentioned, or 
 in «uch manner as may be prescribed by any special o der, and 
 the proceedings as against them shall be deemed to have begun 
 only on the service of such summons or notice. 
 
PARTIES. 
 
 205 
 
 .•..:.:-s^;-v;"' 104. '^^'^ '.■-'•• v... • 
 
 16. Any application to add, or strike out, or substitute a ^ 
 plaintiff or defendant may be made to the Court or a Judge "• 
 at any time before trial by motion, or at the trial of the action 
 
 in a summary manner. 
 
 See Eng. R. Sup. C, 0. XVI., r. 14. 
 
 An objection, by a defendant, that other persons should have been joined as 
 plaintiffs should be made promptly, and may not be postponed till the hearing 
 where no impediment exists to raising the objection at once, Sheehan v. Great 
 Eastern Railway Co., L. R. 16 Uh. D. 59. 
 
 " Court or a J^tdge."—See notes to O. IV., r. 1 (a). 
 
 % 105. 
 
 17. Where a defendant is added, unless otherwise ordered by 
 the Court or Judge, the plaintiff shall sue out an amended 
 writ of summons, and serve the new defendant with such 
 writ, or notice in lieu of service thereof, in *^.he same manner 
 as original defendants are served. 
 
 See Eng. R. Sup. C, O. XVI., r. 15. 
 
 106. 
 
 18. If a statement of claim has been delivered previously 
 to such defendant being added, the same shall, unless otherwise 
 ordered by the Court or Judge, be amended in such manner as 
 the making such new defendant a party shall render desirable; 
 and a copy of such amended statement of claim shall be 
 delivered to such new defendant at the time when he is served 
 with th 1 writ of summons or notice, or afterwards within 4 
 days after his appearance. 
 
 "Court or a Judge."— See notes to O. IV., r. 1 (a). 
 
 *' Ainendeu,," — As to mode of making amendments, see O. XXIII., rr. 9, 10. 
 As to time for making amendments, see O. XXIII., r. 8. As to service of amended 
 pleading, see O. XXIII., r. 11. 
 
 "4 days." — As to computation of time, see O. LII. 
 
 "Dtou'ercd. "—Delivery includes filing: O. XV., r. 26. 
 
 XII. 
 
 16. 
 
 
 
 ,. ' ■ ■: 107. 
 
 19. Where a defendant is, or claims to be, entitled to contri- 
 bution or indemnity, or any other remedy or relief, over against 
 any other person, or where from any other cause it appears to 
 the Court or a Judge that a question in the action should be 
 determined, not only as between the plaintiff and defendant, 
 but as between the plaintiff, defendant and any other person, 
 
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 JUDICATURE ACT. 
 
 or between any or either of them, the Court or a Judge may 
 on notice being given to such last-mentioned person, make such 
 order as may be proper for having the question so determined. 
 
 See Eng. E. Sup. C, O. XVI., r. 17 ; Judicature Act, s. 16, sub-s. 4. 
 
 This and the following rules meet a difficulty often experienced in practice. 
 Heretofore if an action was biought against a surety who claimed contribution 
 from a co-surety a verdict might be recovered which in a subsequent action by the 
 former defendant against his co-surety might be shewn to be excessive. So «Jso 
 in the case of an action brought upon a contract entered into by the defendant as 
 agent of a third person the principal was in no way bound by the result of the 
 action. In such cases it is obviously desirable that all parties snould be concluded 
 by the result of the first action, and for this purpose that the third person should 
 be at liberty to take part in the defence. 
 
 This proceeding however mmt not be confounded with a counter-claim, as to which 
 see notes to sec. 16, s.-s. 4. 
 
 Two cases are provided for by the rules : — 1. Where a defendant is entitled to 
 contribution, indemnity, or other remedy or relief over against any other person. 
 2. Where from any other cause it appears to the Court or a Judge that a question 
 in the action should be determined, not only as between the plaintiff and defend- 
 ant but as between the plaintiff, defendant and any other person or between any or 
 either of them. 
 
 It will be observed that the tb' 'd person does not necessarily become a party to 
 the action. He is served with a notice (see Form No. 18) which informs him of 
 the nature of the action and of the claim of the defendant as against him, that if 
 he wishes to dispute the plaintiff's claim he must cause an appearance to be entered 
 within eight days after service and that in default of his so doing he will not be en- 
 titled in any future proceeding between the defendant and himself to dispute the 
 validity of the judgment whether obtained by consent or otherwise. He may then 
 elect whether he will intervene or not, but in either event he will be bound by the 
 result. 
 
 Claiins betioeen co-defenda)vts. — It was at one time thought that if one defendant 
 claimed indemnity over against a co-defendant the proper mode of procedure 
 was by counter-claim, Shephard v. Beane, L. R. 2 Ch. D. 223. But it is now 
 determined that the notice under the above and following rules applies as between 
 co-defendants as well as in the case of persons who are strangers to the action, 
 Furness v. Booth, L. R. 4 Ch. D. 586 ; Harris v. Gamble, L. R. 6 Ch. D. 748. See 
 also McLay v. Sharp, W. N. (1877) 216. 
 
 May a third party added notify a fourth party, — There has been some difference 
 of opinion as to whether a third person, who has received a notice imder these 
 rules, may notify a fourth person, the fourth a fifth, and so on. In Fowler v. 
 Knoop and the London Banking Association, W. N. (1877) 68 ; 36 L. T. N. S. 
 219, and Witham v. Vane, 49 L. J. Chy. 242, leave was given to a third person 
 added to serve a notice upon a fourth. In Walker v. Balfour, 25 W. R. 511, a 
 contrary opinion was expressed. In The Yorkshire Waggon Co. t The Newport 
 and Abercarne Coal Co., L. R. 5 Q. B. D. 268, the point is stated in the head note 
 with a qunre. 
 
 Examples. — To a claim by plaintiffs for not accepting 183 chests of shellac, 
 according to contract, defendants, among other defences, raised the defence that 
 the shellac was not of the quality contracted for. The defendants had contracted 
 with Messrs. R. and Messrs. T. respectively, for the sale to them of 50 chests 
 on the same terms as their contract with plaintiffs, and the defendants cited 
 Messrs. R. and T., under O. XVI., r. 18. Messrs. R. consented to be bound by 
 the judgment in the action as to the quality of the shellac : — Held, that Messrs R. 
 and T. had been properly cited under 0. XVI., r. 18 (Ont. O. XII., r. 20), and the 
 Court directed that Messrs. T. should be at liberty to appear and defend the action, 
 so far as regarded the question of the quality of the shellac, and that they should 
 be bound by the finding of the jury on that question ; and that the question of 
 costs be reserved until after the trial, Benecke v. Frost, L. R. 1 Q. B. D. 419. 
 
 In order to entitle a defendant to serve a notice on a third person it is not neces- 
 sary that the whole question between the plaintiffs, the defendant, and the thinl 
 person should be identical, it is sufficient if it be prima facie made out that a material 
 
PARTIES. 
 
 207 
 
 question in thf -on ib also a question between the defendant and the third per- O. XII. 
 son ; and unde t • jh circumstances the Court will order service of the notice, if the r. 19. 
 plaintiff will noo ue prejudiced or delayed by the introduction of the third person. 
 Therefore, when an action had been brought against the defendants for breach of 
 charter party, by which they agreed to discharge a cargo of nitrate of soda as fast 
 as the custom of the port of discharge would allow, and the defendants had sold, at 
 Liverpool, to a company carrying on business in Scotland, the cargo to arrive, and 
 it was shewn that by the custom of tiade, of which the company were aware, on 
 such a sale of such a cargo the buyers would be bound to discharge, in accordance 
 with the custom of the port : — Held, that the defendants were entitled to an order 
 citing the company to appear and take part in the trial, The Swansea Shipping 
 Company v. Duncan, Fox & Co., L. R. 1 Q. B. D. 644. 
 
 C. bought goods on credit from H. After delivery, but before the time for 
 payment, C. became bankrupt. H., when the time, for payment arrived, com- 
 menced an action against S. for the price, alleging that C. had bought the goods 
 by the authority of S., and either on ace •vat of S. or on the joint account of S. and 
 C, S. thereupon served the trustee with a notice. The trustee then applied for 
 and obtained, in bankruptcy, an order restraining S. from taking or continuing any 
 proceedings against the trustee : — Held, on appeal, that this order must be dis- 
 charged, for that the case between H. and S. could not be tried in bankruptcy, and 
 that S., if found liable in the action, ought not to have to try the same question 
 again in bankruptcy between himself and the trustee, ex parte Smith ; in re Collie, 
 L. R. 2 Ch. 1>. .51. 
 
 B. agreed to purchase freehold hereditaments of A., who purported to sell un- 
 der a power of sale contained in a mortgage to A., by C, as trustee and executor 
 of the will of D. After acceptance of the title, and preparation of the conveyance, 
 B. received formal notice from unpaid residuary legatees of D., of a claim by them 
 to the property contracted to be sold. In an action by A, for specitio performance 
 of the agreement, a motion by B., that the residuary legatees, who had given notice 
 of their claim, might be added as defendants to the action was refused with costs, 
 as no question arose, which for the purpose of being adjudicated iipon and settled, 
 required that these residuary legatees should be added as pai-ties, Harry v, Davey, 
 L. R. 2Ch. D. 721. 
 
 In Horwell v. The London Gen^ -a! Omnibus Company, L. R. 2 Ex. D. 365, 
 Kelly, C. B., said : — " The plaintiff alleges that the defendants, by their servants, 
 so negligently drove an omnibus upon which the plaintiff was riding, that he was 
 thrown off and sustained injuries. The defendants allege that they were not guilty 
 of negligence, but that the tramway company were giiilty. They now seek to make 
 the tramway company a party to the action, and they rely upon Order XVI., 
 nile 17 (Ont. 0. XII., r. 19), but that rule has no application to this case. If the 
 defenrlants cannot .support their case under rule 18 (Ont. r. 20), or rule 19 (Ont. r. 
 21), they must fail. I will first comment upon rule 18 (Ont. r. 20). It only applies 
 to cases ' where a defendant claims to be entitled to contribution, indemnity, or 
 other remedy or relief over against any person not a party to the action.' Is this 
 a case of contribution ? Clearly it is not. If the plaintiff fails there is an end of 
 the case, but suppose that he establishes that the defendants were guilty of neglig- 
 ence, and recovers damages against them, the defendant cannot claim contribution 
 from the tramway company, for the defendants and the tramway company would 
 both be wrong-doers, and it is clear that there is no contribution between wrong- 
 doers. The word contribution would also include a case where the memljers of a 
 co-partnership are sued for goods sold, and where they have a dormant partner 
 who ought to bear a portion of the price ; for if the action succeeds against the 
 original defendants they would be entitled to call upon him to pay a share 
 of the money recovered from them. Is it a case of indemnity? By 'indem- 
 nity' the Legislature perhaps intended to provide for a case where a surety 
 is sued alone, and he is desirous of making the principal debtor a perty to the pro- 
 ceedings. Then does this case come within the words ' other reme' / or relief over 
 against any person not a party to the action. ' That will apply to a case where an 
 action is brought for the breach of warranty upon the sale of goods by sannde, and 
 the defendant alleges that he liought the goods by sample under a similar war- 
 ranty ; in that case, under these words, the defendant will be entitled to make his 
 vendor a party to the action, and, if the plaintiff succeeds, to recover from him by 
 reason of breach of warrant^'. But in the present case the defendants, by their 
 notice, allege that the accident happened through the neglect of the tramway 
 company ; if they prove that at the trial the action will fail, but if it is not proved 
 the plaintiff will be entitled to recover damages from them ; but in either case they 
 
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 208 
 
 JUDICATUBE AC3T. 
 
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 O. Xlf. will not be entitled to any remedy or relief from the tramway company. I will now 
 
 ■ft. 19. turn to rule 19 (Ont. r 21). That rule refers to rule 17 (Ont. r. 19) in expre8» 
 
 terms, and provides that where it is made to appear that a question in the 
 action should be determined not only as between the plaintiff and the defendant, 
 but as between the plaintiff and any other person, or between any or either 
 of them, the Court or a Judge shall direct notice to be given by the plain* 
 tiff. These words shew that the rule was intended to have a much more 
 extended operation than rule 18 (Ont. r. 20), but is to be put in force at the 
 instance of the plaintiff. Where it shall be made to appear to the Court or a Judge 
 that by introducing another party to the record the plaintiff could sustain a claim 
 either conditionallv or in the alternative, in that case an order may be obtained to 
 make that party a aef endant, and the question between the plaintiff and the defendant 
 may be raised and determined. In the present case, if the plaintiff had ascertained 
 after he had brought the action, that the tramway company had caused the 
 omnibus to strike against the van, than he might have obtained an order under 
 rule 19 (Ont. r. 21), to make the tramway company defendants ; but I repeat it 
 must have been obtained at the instance of the plaintiff. The second defendant 
 would be then compelled to plead to the statement of the claim, and the action would 
 proceed against both. At the trial the plaintiff might succeed against one and 
 fail against the other, or he might succeed as to both or fail as to both, but what- 
 ever might be the result all the questions between the parties would be determined." 
 
 In an action against T. and A., his wife, the claim alleged that W. owed the 
 plaintiff £40, and that at his death he appointed by his will M. W. his residuary 
 legatee ; that M. W. died, having by her will appointed A., the female defendant, 
 her residuary legatee ; that the residuary estate of W. had been assigned by his 
 surviving executor to the defendants. The plaintiff claimed payment of £40 from 
 the defendants, but the surviving executor of W. was not made a party to the 
 action : — Held, upon demurrer, that the claim disclosed a good cause of action, for 
 even if the practice of the Court of Chancery would have required the surviving 
 executor of W. to be joined as a defendant, the proper course (since the passing of 
 the Judicature Acts, 1873, 1875,) for the defendants to take, if they wished to bring 
 him before the Court, was to make him a party to the action under rules of the 
 Supreme Court, O. XVI. R. 17 (Ont. O. XII. r. 19), Hunter v. Young, L. R. 4 
 Ex. D. 256. 
 
 In Associated Home Company v.Whichcord, L. R. 8 Ch. D. 457, the plaintiffs 
 had purchased property from the defendant for £14,000, and they claimed in this 
 action to have £2,000, part thereof, returned to them. The defendant was being 
 sued in the Excheciuer Division by persons who claimed the same £2,000 as com- 
 mission moneys. The Court refused to make an order that the plaintiffs in the 
 Exchequer Division should be served with a third party notice, or made defendants 
 to this action, under rules of Court, 1875, O. X Vl., r. 17 (Ont. O. XII., r. 19) ; 
 see also The Cargo ex Sarpedon, L. R. 3 P. D. 28 ; MaoAllister v. The Bishop of 
 Rochester, L. R. 5 C. P. D. 194. 
 
 In an action by a companjr against its directors and others, seeking to make the 
 defendants personally liable in respect of certain dividends alleged to have been 
 improperly paid out of capital, the defendants applied for leave to serve third 
 party notices on all the shareholders of the company, 450 in number, on the ground 
 that if they, the defendants, were held liable, they would have a right over against 
 the shareholders to recover from them the sums received by them by way of 
 dividend : — Held (affirming the decision of Hall, V. C), that the granting of the 
 leave asked for would materially embarrass the plaintiffs in the conduct of their 
 action, and that, therefore, the Court in the exercise of its discretion ought to re- 
 fuse the application. Wye Valley Railway Company v. Hawes, L. R. 16 Ch. D. 489. 
 
 Defendants were allowed to withdraw on new defendants taking their place and 
 admitting the cause of action and their liability as the original defendants had 
 done. Commissioners of Waterford v, Veale, W. N. (1876), p. 23. 
 
 Where plaintiffs and defendants allege that a suit is occasioned by the conduct 
 of a third party leave will be given to serve him with notice of the suit so that re- 
 lief may be granted against him, Treleven v. Bray, L. R. 1 Ch. D. 176 ; see, how- 
 ever, Yorkshire Waggon Company v. Newport Coal Company, L. R. 5 Q, B. D. 
 268. 
 
 Practice. — When it is desired that a notice under these orders should be given 
 to persons not already parties to the suit, the practice, as stated by Mr. Arthur 
 Wuson, is to obtain an order, ex parte, giving leave to serve the notice. The 
 authority cited, however, is Pearson v. Lane, W. N. (1876) 248, and in that case 
 
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 PARTIES. 
 
 ao9 
 
 ill now 
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 mdanty 
 
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 at the 
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 a claim 
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 rmined." 
 
 owed the 
 residuary 
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 passing of 
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 plaintiff3 
 led in this 
 was being 
 as com- 
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 Bishop of 
 
 make the 
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 Dh.D.489. 
 
 place and 
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 jld be given 
 
 Ir. Arthur 
 
 btice. The 
 
 that case 
 
 the order was made upon notice to the plaintiff. 
 ■ ^ ■" r. 19). 'on " ' ' ' 
 
 Quain. J., said :— "I think the O. Xll. 
 
 DV 
 
 words in rule 17 (Ont.>. 19), ' on notice being given to such last-mentioned person,^ b. 19> 
 refers to the notice that ttie defendant now asks leave to give, and do not mean that 
 a notice to the third party is necessary of this application. I think the preliminaiy 
 question is exclusively between the plaintiff and defendant. But I think this 
 is a question that should be discussed, and I hope it will be taken to the Division 
 of the Court now sitting." 
 
 It seems reasonable that the plaintiff should have notice of such an application, 
 otherwise proceedings misrht be taken in an action of which he knew nothing and 
 which mignt delay or embarrass his proceedings. And it is now beyond doubt that 
 notice must be given, Wye Valley Railway v. Hawes, 15 L. J. (notes) 136 ; L. R. 
 16Ch. D. 489. 
 
 For form of the notice, see Forms, No. 18. 
 
 For form of indorsement, see Forms, No. 29. 
 
 The notice is to be served " according to the rules relating to the service of writs of 
 summons," (see O. VI.) together with "a copy of the statement of claim, or if 
 there be no statement of claim, then a copy of the writ of bummons in the action." 
 The notice may be served out of the jurisdiction in the same manner as a writ of 
 summons, Swansea Shipping Co. v. Duncan, L. R. 1 Q. B. D. 644. 
 
 If the person served desires to appear he rnay do so (using the Form No. 79 in 
 the appendix) within eight days from the service of the notice. In case of appear- 
 ance the party giving the notice applies to the Court or a Judge for directions as 
 to the mode of having the question in the action determined, see rule 23 and 
 Benecke v. Frost, L. R. 1 Q. B, D. 419 ; Swansea Shipping Co. v. Duncan, L. R. 
 1 Q. B. D. 644. Of this application the plaintiff must have notice, Bower v. 
 Hartley, L. R. 1 Q. B. D. 652. 
 
 Motion by third party to discharge or vary order, — If a person served with a notice 
 considers that the order allowing it to be served is improper, he may move to vary 
 it or set it aside. 
 
 For form of order, see Forms, No. 123. 
 
 Costs.— The order made for prescribing the mode of determining the question 
 in the action reserves the question of costs between the plaintiff and defendant 
 until after the trial, Benecke v. Frost, L. R. 1 Q. B. D. 419. There is no power 
 when admitting a third party, who has been served with notice to come m and 
 defend, to order the costs to be in the discretion of the Judge at the trial. The 
 only discretion as to costs is as to imposing them or not upon the party so coming 
 in, and there are no means for giving him his costs, Yorkshire Waggon Com- 
 pany V, Newport Coal Company, L. R. 5 Q. B. D. 268. In that case Cockbum, 
 G. J., said : — " It seems to me clear that the Master had no authority to 
 make the order which he did, giving the Judge at the trial discretion as to the 
 costs of the third and subsequent parties. There is no provision for imposing 
 any terms except upon the party seeking to come in and defend the action. 
 I can find no authority given, eitner by the Statute or by the rules, to make the 
 defendant pay costs as between himself and the other parties who came in as parties 
 to the action under the provisions of Order XVI. (Ont. O. XII). I am not at all 
 sure that there ought to be any such provision as to costs. It is entirely optional 
 whether a party to whom notice has been given will come in or not. The defendant 
 gives notice to the third party that the plaintiff is suing him, and that, if the 
 plaintiff succeeds he will claim his remedy over against the third party, and that if 
 such party likes to come in and make himself a defendant, for the purpose of fight- 
 ing the Question in which he is interested, he may do so, but if he does not choose 
 to do so ne will be bound by the result of the action with regard to such question. 
 The defendant cannot compel him to come in. It is optional with him to do so, 
 and if he chooses to come in it seems doubtful whether there is any good reason 
 why he should be entitled to call on the defendant to pay costs to him. I am not 
 sure, therefore, that there is any omission in the provisions of the rules in this 
 respect ; but, however this may be, I can see no provision giving authority to the 
 Master to make this order." This decision was, however, in Dawson v. Shepherd, 
 41) L. J. C. L. 529 (in appeal), said to have been a decision on the particular facts 
 of the case and was not intended to exhibit a principle. The point as to the power 
 t() make an order as to costs, anticipatory of the trial, was not there decided ; but 
 it was held that there could be no cloubt that at the trial the Court had full power 
 to deal with the costs, and can award them to the third party. In this case after 
 14 
 
I . 
 
 H 
 
 210 JUDICATURE ACT. 
 
 0« XII* the third party had come in and participated in the defence, the original parties 
 
 B« 19. effected a settlement without reference to him. He, thereupon, moved for an 
 
 order directing the defendant to pay his costs and was succaho^:! in appeal. He 
 Court has no power to annul a direction in a judgment prdviously deliveredj that a 
 third party sh&il pay the costs of the interlocutory proceedings taken to brmg him 
 before the Court, although by the judgment in the action it if ordered that he 
 be dismissed from the action, with costs to be paid by the defendants, Benyon v. 
 Godden, L. B. 4 Ex. D. 246; see also Witham v. Vane, 49 L. J. (Chy.) 242; 
 Treleven v. Bray, L. R. 1 Ch. D. 176. 
 
 108. 
 
 20. Where a defendant is entitled to contribution, indemnity 
 or other remedy or relief over against any person not a party to 
 the action, he may serve a notice to that effect ; 
 
 (a) A copy of such notice shall be filed with the proper 
 officer, and served on such person, according to the rules 
 relating to the service of writs of summons ; 
 
 (6) The notice shall state the nature and grounds of the 
 claim, and shall unless otherwise ordered by the Court or a 
 Judge, be served within the time limited for delivering his 
 statement of defence; 
 
 (c) Such notice may be in the form or to the effect of the 
 
 Form No. 18 in Appendix (B) hereto with such variations as 
 
 circumstances may require, and therewith shall be served 
 
 •: ,. a copy of the statement of claim, or if there be no statement 
 
 of claim, then a copy of the writ of summons in the action. 
 
 ^ 109. 
 
 21. Where under Rule 19 of this Order it is made to appear 
 to the Court or a Judge, at any time before or at the trial, that 
 a question in the action should be determined, not only as 
 between the plaintiff and defendant, but as between the plain- 
 tiff and the defendant and any other person, or between any 
 or either of them, the Court or Judge, before or at the time 
 of making the order for having such question determined, 
 shall direct such notice to be given by the plaintiff at such 
 time and to such person and in such manner as may be thought 
 proper ; and if made at the trial the Judge may postpone such 
 trial as he may think fit. 
 
 110. 
 
 22. If a person not a patty to the action, who is served as 
 mentioned in Rule 20, desires to dispute the plaintiff's claim 
 
PARTIES. 
 
 211 
 
 in the action as against the defendant on whose behalf the ••*■■• 
 notice has been given, he must enter an appearance in the "" *'* 
 action within 8 days from the service of the notice ; in 
 default of his so doing, he shall be deimed to admit the valia- 
 ity of the judgment obtained against such defendant, whether 
 obtained by consent or otherwise ; provided always, that a 
 person so served and failing to appear within the said period 
 of 8 days, may apply to the Court or a Judge for leave to 
 appear, and such leave may be given upon such terms, if any, 
 as the Court or Judge shall think tit. . 
 
 111. 
 
 23. If a person not a party to the action served under these 
 Rules appears pursuant to the notice, the party giving the 
 notice may apply to the Court or a Judge for directions as to 
 the mode of having the question in the action determined; 
 
 (a) The Court or Judge, upon the hearing of such applica- 
 tion, may, if it shall appear desirable so to do, give to the person 
 so served liberty to defend the action upon such terms as shall 
 seem just, and may direct such pleadings to be delivered, or 
 such amendments in any pleadings to be made, and generally 
 may direct such proceedings to be taken, and give such direc- 
 tions, as to the Court or Judge shall appear proper for having 
 the question most conveniently determined, and with respect to 
 the mode and extent in or to which the person so served shall be 
 bound or made liable by the decision of the question, and as to 
 che costs of the proceedings. 
 
 C 
 
 z 
 
 I 
 
 CP 
 
 113. 
 
 24. A plaintiff is not to be unnecessarily delayed in recover- 
 ing his claim by reason of questions between defendants in 
 which the plaintiff is not concerned ; and the Court or Judge 
 is to give such direction as may be necessary to prevent such 
 delay of the plaintiff, where this can be done, on terms or other- 
 wise, without injustice to the defendants. 
 
 113. 
 
 25. Where a person not already a party to a suit is to be 
 served with notice of a judgment or order for the purpose of 
 binding him as if he had been originally a party, and such 
 person is an infant, or person of unsound mind not so found 
 
' i 
 
 818 
 
 •. XII. 
 
 B.M. 
 
 JUDICATURE ACT. 
 
 by inquisition or judicial declaration, the notice shall be served 
 in the same manner as a writ of summons. 
 
 See Eng. B. Sup. C, April, 1880, r. 7. 
 
 " Same momntr at a vrrit of Summons." See 0. VI., rr. 4, 5, 6 ; 0. IX, rr. 1, 2. 
 
 114. 
 
 26. In any cause or matter for the administration of the 
 estate of a deceased person, no party other than the executor 
 or administrator shall, unless by leave of the Judge, be entitled 
 to appear either in Court or in Chambers on the claim of any 
 person not a party to the cause against the estate of the de- 
 ceased in respect of any debt or liability. The Judge may 
 direct any other party to the cause to appear, either in addition 
 to or in the place of the executor or administrator, upon such 
 terms as to costs or otherwise as he shall think fit. 
 
 See Eng. B. Sup. C, April, 1880, r. 8. 
 
 ORDER XIII. 
 Joinder of Causes of Action. 
 
 \M 
 
 O. XIII. 
 B. 1. 
 
 116. 
 
 1. Subject to the following Rules, the plaintiff may unite 
 in the same action and in the same statement of claim several 
 causes of action ; but if it appear to the Court or a Judge 
 that any such causes of action cannot be conveniently tried 
 or disposed of together, the Court or Judge may order 
 separate trials of any of such causes of action to be had, or 
 may make such other order as may be necessary or expedient 
 for the separate disposal thereof. 
 
 See Eng. B. Sup. C, 0. XVII., r. 1 ; Eng. 0. L. P. Act of 1852, s. 41. 
 
 The sections of the Common Law Procedure Act, B. S. O. c. 50, as to joinder of 
 canoes of actions; are as follows : — 
 
 Sec. 84. Causes of action of whatever kind, provided they be by and against the 
 same parties and in the same rights, may^ be iomed in the same suit, but this shall 
 not extend to replevin or ejectment, or in the County (Jourts to causes of action 
 which are local and arise in cufferent counties, and where two or more of the causes 
 of action so joined in cases in the Superior Courts are local and arise in different 
 counties, the venue may be laid in either of such counties. 
 
 Sec. 85. Either of the Superior Courts, or a Judge thereof, or the Judge of a 
 County Court, may prevent the trial of different causeR of action together, if such 
 trial would be inexpedient, and in such case any such Court or Judge may order 
 separate records to be made up, and separate trials to be had, but nothing herein 
 
JOINDER OP CAUSES OF ACJTION. 
 
 218 
 
 erved 
 
 rr. 1, 2. 
 
 of the 
 ecutor 
 Qtitled 
 of any 
 the de- 
 [e may 
 ddition 
 )n such 
 
 '■y 
 
 ly 
 
 unite 
 several 
 
 Judge 
 tried 
 
 order 
 had, or 
 cpedient 
 
 41. 
 
 joinder of 
 
 Etgainst the 
 t thia shall 
 s of action 
 the causes 
 in different 
 
 Judge of a 
 her, if such 
 ! may order 
 hing herein 
 
 contained shall restrict or diminish the obligation or right of a plaintiff to include ®* ^IH* 
 in one action all or any of the drawers, makers, indorsen and acceptors of any B* 1* 
 bill of exchange or promissory note. 
 
 Sec. 86. In an action brought by a man and his wife on any cause of action 
 accruing personally to the wife, in respect of which they are necessarily co-plain- 
 tiffs, the husband may add thereto claims in his own rights and separate actions 
 brought in respect of such claims may be consolidated, if the Court or a Judge 
 thinks fit ; but in case of the death of either plaintiff, such suit shall abate so far 
 as relates to the causes of action, if any, which do not survive. 
 
 See Harrison's Common Law Procedure Act (2nd ed.) p. 84, et seq. 
 
 As to when a bill in Chancerv would be multifarious from improperly joining 
 in one bill distinct and independent matters, see Story, Eq. PL t4th ed.) sec. 271, 
 etseq. 
 
 " Several cause* of action." — The preceding order (XII. ) dealt with the subject of 
 parties to an action. It assumed the existence of some one cause of action, and 
 provided that various persons might be joined as parties, whether they were inter- 
 ested in that cause of action jointly, severally or in the alternative. The present 
 order deals with the joinder of various causes of action, assuming the proper consti- 
 tution of the action with respect to parties. There is therefore a close limitation of 
 the power as to joinder of parties and causes of action. There must, as Mr. Arthur 
 Wilson says (at p. 187) be either identity of subject matter, in which case O. XII. 
 gives ample liberty in the choice of parties; or identity of parties, in which case 
 O. XIII. gives a like liberty in the choice of subject matters. See remarks of 
 Denman, J., upon this summary of Mr. Wilson's, in Smith v. Richardson, L. B. 4 
 C. P. D. 116. 
 
 Action for price of goods, and by eruiorsee of a bill given for the jn-ice, is embarras- 
 sing, and probably not in any event permissible under this rule. Smith v. Richardson, 
 L.R.4d.P. D. 112. 
 
 Several actions, several defendants, one subject matter,— In Howell v. West, W. N. 
 (1879) 90, the claim alleged that the plaintiff was a medical man and the defendant, 
 West, head master of Epsom College, and the defendant, Jones, a medical man, 
 practising as surgeon and apothecary in the neighbourhood of Epsom ; that the 
 college was under the management of the medical council ; that the defendant, 
 West, had a separr.te boarding-house of his own, where he received boys to be 
 educated at the college, and which was exclusively under his own management ; 
 that the plaintiff required an assurance and promiso from the defendant. West, 
 that his son, John, if received by him, should be and remain under his or his wife's 
 personal care, and not under tne care of the council, and the defendant, West, 
 gave this assurance ; and it was agreed that the plaintiff should pay for such medi- 
 cal at'^ndance as his son required ; that upon these terms the plaintiff's son was 
 received by the defendant West ; that the plaintiff's son became ill and was at- 
 tended bjr the defendant Jones ; that the illness proving to be scarlet fever, with 
 the sanction of the defendant Jones, the defendant West, caused the plaintiff's 
 eon to be removed to a room in the infirmary of the college, which was not in a fit 
 state to receive him, and in which he was not properly attended ; that owing to 
 the removal the plaintiff's son became worse and died. As regarded the defendant, 
 West, the plaintiff charged that he was guilty of a breach of contract with the 
 plaintiff in causing the boy to be removed to the infirmary where he ceased to be 
 under the defendant's own personal care, and was transferred to the care of the 
 medical council, and further that he was guilty of negligence. As regarded the 
 defendant Jones, the plaintiff charged that the defendant was employed to attend 
 upon his son, but that he neglected to exercise reasonable skill and care. In the 
 alternative the plaintiff charged that the defendant Jones, as a surgeon and 
 apothecary, warranted that he would exercise reasonable skill and care in his at- 
 tendance upon his patients, yet, that bein^ employed to attend the plaintiff's son, 
 he did not possess, or neglected to exercise, reasonable and competent skill and 
 ^re. The plaintiff alleged that he had incurred expenses and loss in attending 
 himself, and in procuring attendance upon his son, and in procuring assistance in 
 his business during his absence. Denman, J., ordered the claim to be struck out 
 on the ^ound that it was embarrassing ; the Queen's Bench Division affirmed 
 the decision of Denman, J., on the ground that there was a misjoinder. The 
 plaintiff appealed. The Court (Bramwell, Baggally, and Thesiger, L. JJ.) held 
 ^^ the claims were rightly joined, and allowed: the appeal ; the defendants to be 
 at uberty to deny, in general terms, the averments of tne claim> 
 
 c 
 
 2 
 
 r 
 > 
 
 m 
 
214 
 
 JUDICATUBE ACT. 
 
 O. XIII. CanceUation of partnership or dM«o?«<ton. —Plaintifif, hv his statement of claim » 
 
 K, f, claimed to have an aereement for a partnership with the defendant in a land specu- 
 
 lation cancelled on the ground that he had been induced to enter into it by the 
 misrepresentation of the defendant and in ignorance of its effect ; or in the alterna- 
 tive tnat the partnership created by the agreement mi(;ht be dissolved and the 
 accounts taken, and the defendant restrained from interfering with the management 
 of the works or violation of the agreement :— Held, that there was no inconsistency 
 in the alternative claims or in the allegations in support of them, L. K 7 Ch. D. 1. 
 
 Recovery of /ond.— See next rule. 
 
 (7o«te.— The plaintiff lessee of land brought an action against the lessor and 
 against other lessees who claimed a right of way over the plaintiff's land, denying 
 the right and claiming an injunction against him, or if the Court should hold that 
 they had under their lease a right of way, then damages from the lessor :— Held, 
 that the plaintiff was not at the hearing bound to elect against which of the de- 
 fendants to proceed, but that the counsel of the lessor might support the case of 
 the plaintiff against the other lessees. Judgment having been given for the other 
 lessees establishing their right of way, and the plaintiff's right to indemnity from 
 , the lessor being then admitted :~Held, that nevertheless the lessor would not bo 
 
 ordered to pay to the plaintiff the costs incurred by making the other lessees de- 
 fendants, Child V. Stenning, L. B. 7 Gh. D. 413. 
 
 116. 
 
 2. No cause of action shall, unless by leave of the Court or 
 a Judge, be joined with an action for the recovery of land, 
 except claims in respect of mesne profits or arrears of rent in 
 respect of the premises claimed, or any part thereof, and 
 damages for breach of any contract under which the same or 
 any part thereof are or is held ; and except claims in actions on 
 mortgages, for the recovery of the mortgage money and for 
 foreclosure or sale. 
 
 See Eng. K. Sup. C, O. XVIL, r. 2. 
 
 " Unless by leave. " Tbne for application.— A.n application for leave to join another 
 action with an action for the recovery of land must be made before the writ is 
 issued. Where another action had been joined with an action for the recovery of 
 land without leave, the Court refused to grant leave to continue the action in that 
 form, although the defendants had appeared. The rule which enables the Court to 
 enlarge the time for doing an 'act lis not applicable to such a case, in re Filcher, 
 Pilcher v. Hinds, L. E. 11 Ch. D. 905. 
 
 " Action for the recovery of land." — The saving clause in favour of mortgage suits 
 is not in the English Act. It had been held, moreover, that a mortgage suit is not 
 an action for the recovery of land, Barwick v. Barwick, 21 6r. 39 ; Tawell v. Slate 
 Co., L. R. 3 Ch. D. 629. 
 
 An action "to establish title to land " is an action " for the recovery of land," 
 80 as to require the leave of the Court under this rule for its joinder with another 
 cause of action, Whetstone v. Dewis, L. R. 1 Ch. D. 99. 
 
 An action " to establish title to land," not claiming possession, is not an action 
 " for the recovery of land " so as to require the leave of the Court for its joinder 
 with another cause of action, Gledhill v. Hunter, L. R. 14 Ch. D. 4£^. In this 
 case the Court declined to follow Whetstone v. Dewis, L. R. 1 Ch. D. 9i9. Where 
 the writ was indorsed, for declaration of title, declaration that a lease was granted 
 under a mistake, recovery of rents and profits, and a receiver, and the statement of 
 claim asked also for possession : — Held, that this was an action for recovery of land 
 and nothing else, and that there was no joinder of any cause of action which 
 required the leave of the Court, Gledhill v. Hunter, L. R. 14 Ch. D. 4ft2. 
 
 When leave will be granted, — An action for the administration of personal estate 
 maj be joined with an action to establish title to real estate, where the plaintiff 
 claims both estates under a common gift in the same will, lb. ; and see Kitching 
 V. Kitching, 24 W. R. 901. 
 
JOINDER OF CAUSES OF ACTION. 
 
 215 
 
 Where the action is for the recovery of land and of a deed relating to the O. XIII. 
 land, the joinder of these cauaea of action will be allowed, Cook v. Euohmarch, Ij. b, 2, 
 R. 2 Ch. D. Ill ; Manisty v. Kenealy, 24 W. R. 919. A claim for a receiver may 
 be joined with an action for the recovery of land, Allen v. Kennett, 24 W. R. 845. 
 And see notes to O. XII., r. 1. 
 
 ** Court or Judge."— See notes to O. IV., r. 1 (a). 
 
 117. 
 
 .3. Claims by an assignee in insolvency asl such shall not, 
 unless by leave of the Court or a Judge, be joined with any 
 claim by him in any other capacity. 
 
 See Eng. R. Sup. 0., 0. XVII., r. 3. 
 
 i|' f;); 
 
 118. 
 
 4. Claims by or against husband and wife may be joined 
 with claims by or against either of them separately. 
 
 See Eng. R. Sup. C, O. XVII., r. 4 ; R. S. 0., c. 50, a. 86 ; Eng. C. L. P. Act 
 of 1852, s. 40. 
 
 119. 
 
 5. Claims by or against an executor or administrator as such 
 may be joined with claims by or against him personally, pro- 
 vided the last mentioned claims are alleged to arise with refer- 
 ence to the estate in respect of which the plaintiff or defendant 
 sues or is sued as executor or administrator. 
 
 See Eng. R. Sup. C, 0. XVII., r. 5. 
 
 There was difficulty formerly in knowing which way to sue, Bolingbroke v, Kerr, 
 L. R. 1 Ex. 222 ; Mosely v. RendaU, L. R. 6 Q. B. 338 ; Abbott v. Parfit, 6 Q. B. 
 346. ^ 
 
 A defendant must not set up by way of a counter-claim against the claim of a 
 plaintiff suing only in a distinct personal character, claims against him personally 
 aud also as an executor, Macdonald v. Carrington, L. R. 4 C. P. D. 28. 
 
 •mm 
 
 CD 
 
 120. 
 
 6. Claims by plaintiffs jointly may be joined with claims by 
 them or any of them separately against the same defendant. 
 
 See Eng. R. Sup. C, 0. XVII., r. 6. 
 See 0. XII., r. 1, and notes. 
 
 lai. 
 
 7. The last 3 preceding Rules shall be subject to Rule 1 
 of this Order, and to the Rules hereinafter contained. 
 
 See Eng. R. Sup. C, 0. XVII., r. 7. 
 
 i 
 
T^ 
 
 216 
 
 JUDIOATURB ACT. 
 
 
 ir 
 
 >ii 
 
 ini 
 
 XIII. 
 
 . s. 
 
 ^ 
 
 O. XIV. 
 
 132. 
 
 8. Any defendant alleging that the plaintiff has united in 
 the same action several cai^ses of action which cannot be con- 
 veniently disposed of in one action, may at any time apply to 
 the Court or a Judge for an order confining the action to such 
 of the causes of action as may be conveniently disposed of in 
 one proceeding. 
 
 See Eng. R. Sup. C, 0. XVII., r. 8 ; R. S. 0., c. 50, b. 86 ; Eng. 0. L. P. Act 
 of 1862, 8. 41. 
 
 " Cannot he conveniently disposed of in one action. "--Under rule 1 of this order, 
 where sucli cauBes of action have been joined, separate trials may be ordered, or 
 such other order may be made as may be necessary for the separate disposal thereof. 
 Under the present rule (No. 8) an order may be made confining the action to snch 
 •ol the causes of action as may be conveniently disposed of in one action. The next 
 rule (No. 9) refers to the order to be made as one by which some of the causes of action 
 are to be excluded." Under O. XXXI., r. 3. different questions mav be tried in 
 difiPerent modes and some issues may be tried uefore the others. It is presumed 
 that orders will be made under each of these orders according as under the circum- 
 stances of the case it may seem most advisable. But see Wilson's Judicature Acts, 
 p. 189. 
 
 For the cases shewing what issues can be conveniently tried together, see notes 
 to sec. 16, sub-s. 4 of the Act. 
 
 " Court or a Judge."— See notes to O. IV., r. 1 (o). 
 
 133. 
 
 9. If, on the hearing of such application as in the last pre- 
 ceding Rule mentioned, it shall appear to the Court or a Judge 
 that the causes of action are such as cannot all be conveniently 
 disposed of in one action, the Court or a Judge may order 
 any of such causes of action to be excluded, and may direct 
 the statement of claim, or, if no statement of claim has been 
 delivered, the copy of the writ of summons and the indorse- 
 ment of claim on the writ of summons, to be amended accord- 
 ingly, and may make such order as to costs as may be just. 
 
 See Eng. R. Sup. C, 0. XVII., r. 9. 
 
 " Amended."— Aa to mode of making amendments, see 0. XXIII., rr. 9, 10; as 
 to time for making amendments, see O. XXIII., r. 8 ; as to service of amended 
 pleading, see 0. XXIII., r. 11. 
 
 ORDER XIV. 
 
 Actions by and against Lunatics and Persons op 
 Unsound Mind. 
 
 1!34. 
 
 In all cases in which lunatics and persons of unsound mind, 
 not so found by inquisition or judicial declaration, might respec- 
 
ACTIONS BY AND AGAINST LUNATICS. 
 
 2ir 
 
 iively before the passing of the Act have sued as plaintiffs, or 
 would have been liable to be sued as defendants, in any action 
 or suit, they may respectively sue as plaintiffs in any action by 
 their committees or next friends in manner practised in the 
 Court of Chancery before the passing of the said Act, and may 
 in like manner defend any action by their committees or guar- 
 dians appointed for that purpose. 
 
 " Oommitteet."— Idiots and lunatics sue by the committees of their estates, 
 Bidler v. Bidler, 1 £q. Ca. abr. 279 : Prac. 11^. 272. Sometimes informations 
 have been exhibited by the Attorney-General on behalf of both idiots and lunatics, 
 considering them as under the protection of the Crown, Attorney-G funeral v. 
 Farkhurst, 1 Ca. Ch. 112; Attorney-General v. Woolrich, 1 Ca. Cn. 163; par- 
 ticularly if the interests of the committee have clashed with those of the lunatic, 
 Attorney-General v. Panther, 2 Dick. 748; and see Attorney-General v. Tyler, 2 Ed. 
 230. The lunatic must be made a party as well in a bill as in an information on 
 his behalf, 1 Dan. Pr. Persons of weak or unsound mind, not so found by in- 
 quisition, have been permitted to sue by their next friend, without the interven- 
 tion of the Attorney-General, Wartnaby r. Wartnaby, Jac. 377 ; and see Price v. 
 Berrington, 7 Ha. 394 ; see Dan. Chy. Fr. 80 ; see also notes to O. VI., r. 6. 
 
 "Next friends."— "When a bill was filed without authority in the name of a 
 person who was afterwards proved to be sane, the next friend had to pay all the 
 costs. Palmer v. Walesby, L. R. 3 Ch. 732 ; and see Wartnaby v, Wartnaby, Jac. 
 377. 
 
 The next friend of a lunatic need not be a person of substance. Sharp v. Sharp, 
 2 Ch. Ch. R. 244. 
 
 Jurisdiction. — In the matter of lunatics and their estates, the Court of Chancery 
 in this Province has much more extensive jurisdiction than is possessed by the 
 Court of Chancery in England. "In the case of lunatics, idiots, and persons of 
 unsound mind, and their property and estates, the jurisdiction of the Court shall 
 include that which, in England, is conferred upon the Lord Chancellor by a com- 
 mission from the Crown, under the sign manual," R. S. 0., c. 40, s. 58. 
 
 As to the distinction between the jurisdiction exercised by the Lord Chancellor 
 in Chancery and in Lunacy, see Murray v. Frank, 2 Dick. 555 ; Sherwood v. 
 Sanderson, 19 Yes. 280. 
 
 "Guardian."— See O. IX., r. 1, 1 (a). 
 
 K. I 
 
 XIV. 
 
 ORDER XV. 
 
 '^-K*-' 
 
 Pleading generally. 
 135. 
 
 1. The following Rules of pleading shall be substituted for o- xv. 
 those heretofore used in the Court of Chancery and in the ■*• *• 
 Courts of Common Law. 
 
 See Eng. R. Sup. C, 0, XIX., r. 1. 
 
 "Pleading" shall include any petition or summons, and also shall include the 
 statements in writing of the claim or demand of any plaintiff, and of the defence of 
 any defendant thereto, and of the reply of the plaintiff to any counter-claim of a 
 defendant. Judicature Act, sec. 84. 
 
 For the rules of pleading heretofore in use in the Court of Cliancery, see G. O. 
 Chy., Nob. 74-85, 120, 122-133. 
 
 The rules of pleading in the Courts of Common Law may be found in Harrison's 
 Gotnmon Law Procedure Act (2nd ed.) 706. 
 
1 ! 
 
 i 
 
 
 ^ f 
 
 -I 
 
 ■■1.. 
 
 III 
 
 1 
 
 III 
 
 218 
 
 O. XV. 
 R. SI. 
 
 ili !i 
 
 JUDICATURE ACT. 
 
 136. 
 
 2, Unless the defendant in an action at the time of his 
 appearance shall state that he does not require the delivery of 
 a statement of claim, the plaintiff shall within such time 
 and in such manner as hereinafter prescribed, deliver to the 
 defendant after his appearance a statement of his claim and 
 of the relief or remedy to which he claims to be entitled ; or a 
 notice in lieu of such statement as provided by Order 17 of 
 these Rules. 
 
 See Eng. E. Sup. C, 0. XIX., r. 2. 
 
 "Attht time of his appearance." — The statement is made in the appearance ; see 
 Forms, Nos, 78, 81. 
 
 '* Within such time." — The statement is to be delivered within 3 months from 
 the time of the defendant's entering his appearance, O. XVII., r. 1 (a). 
 
 "Deliver." — Delivery in this case includes filing, alt>iough it is otherwise in 
 England ; see O. XV., r. 26. As to mode of delivery, ^ee O. XV., r. 8. 
 
 "Statement of his claim,"— See subsequent rules of this order, 
 
 (a) The defendant shall, within such time anc"" in such man- 
 ner as hereinafter prescribed, deliver to the plaintiff" a state- 
 ment of his dbfonce, set-off", or counter-claim (ii any). 
 
 See Eng. R. Sup. C, 0. XIX., r. 2. 
 
 "Within «uch time." — The time limited is 8 days from the delivery of the state- 
 ment of claim, O. XVIII., r. 1. 
 
 "Delivered." — Delivery in thi? case includes filing, O. XV., r. 26. As to mode 
 of delivery, see O. XV., r. 8. 
 
 ^* Counter claim." — See notes to s. 16, sub-s. 4. 
 
 I 
 
 
 upo 
 ciai 
 
 (6) The plaintiff may, in like manner, deliver a statement 
 of his reply (it tiny) to such defence, set-off", or counter-claim. 
 
 See Eng. R. Sup. C. XIX., r. 2. 
 
 " May.'' — The Englisft corresponding order uses the word shall. By the inter- 
 pretation Act, R. S. 0., c. 1, s. 8, sub-8. 2, the word shall is iivperative'and the 
 word may permissive. The reason for the change from the English Act is not 
 apparent, for, by O. XX., r. 1, it is provided that "a plaintiff shall deliver his 
 reply, if any, 'vithin 3 weeks after the defence, or the last of the defences, shall 
 have been delivered, unless the time shall be extended by the Court or a Judge. 
 
 "Statement of his reply." — See O., XX, 
 
 A counter-claim must claim relief against the plaintiff, and he must be made a 
 party to it, and the reb'ef sought by a counter-claim must relate to the specific sub- 
 ject matter of the action. Where a counter-claim sought an indemnity, the in 
 demnity must be confined to the specific property which was the subject of the 
 action, Harris r. Gamble, L. R. 6 Ch. D. 748 ; Pad wick v. Scott, L. R, 2 Ch. D, 
 736, Shephard v. Beane, L. R, 2 Ch, D, 223, cannot now be cited as an authority ; 
 see Harris v. Gamble, supra. 
 
 Where two or more plaintiffs sue for a joint claim, the defendant may set up 
 against each individual plaintiff separata counter-claims sounding in damages, 
 Tho Manchester, Sheffield, & Lincolnshire Railway Company and the London 
 and North-western Railway Company v. Brooks, L. R. 2 Ex. D, 243. A 
 counter-claim must contain in itself a specific statement of the facta upon which 
 
PLEADING. 
 
 219 
 
 his 
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 the 
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 ; see 
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 the 
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 - 
 
 I 
 
 reliance is placed for the relief claimed. It is not sufficient that the facts relied 
 upon appear in the statement of defence, even although that and the counter- 
 Sbims form one continuous document, Crowe v. Bamicott, L. K. 6 Ch. D. 753. 
 But, where a writ of ne exeat against a defendant was obtained by the plaintiff im- 
 mediately after the commencement of the action, and the defendant was arrested, 
 he, by his statement of defence, alleged that the writ had been improperly obtained 
 and claimed f^amages for the arrest, making the allegation of the improper issue of 
 the writ an^* the cipim for damages in one paraj^raph of the statement of defence, 
 which was nu:nbered consecutively with the others, and not headed separately as 
 a counter claim : — Held that the pleading was good as a counter-claim, Lees y. 
 Paterson, L. R. 7 Ch. D. 866. 
 
 The statement of claim alleged that the plaintifif sued •« assignee by deed of a 
 debt due from defendant to the asignor upon a building contract. The defendant 
 
 E leaded by way of set-off and counter-claim that he was entitled to damages for 
 reaches of contract by the assignor to complete and deliver the buildings at the 
 specified time, whereby the defendant lost tne use of them. On demurrer to so 
 much of the defence as alleged breaches of contract by the assignor : — Held that 
 the defendant was not entitled to recover any damajjos against the plaintiff, but 
 was entitled by way of set-off, or deduction from the plaintiff's claim, to the 
 damages which he had sustaired by the non-performance of the contract by the 
 assignor ; and that the form oi the defence munt be amended accordingly. Young 
 V. Kitchin, L. R. 3 Ex. D. 127 . 
 
 It is iiot essential tc a good counter-claim that it should shew a claim to an 
 amount equalling the plaintiff's claim, Mostyn v. The West Mostyn Coal and Iron 
 Co. (Limited), L. R. 1 C. P. D. 145. 
 
 A defendant must not set tip by wiy of counter-claim against the claim of the 
 plaintiff suing only in a distinct pers I character, claims against him personally 
 and also as an executor, Macdonald t Jarrington, L. R.;4 C. P. D. 28. 
 
 In an action tried by a jury in which the plaintiff proves u claim, but a counter- 
 claim of less amount is proved by the defendant, the plaintiff recovers judgment 
 for the balance only, and if no order is made as ii . :)''ts the defendant's right to 
 costs must be decided with reference to that bal'iviw', a,nd not to thai; amount of the 
 claim proved, Staples v. Young, L. R. 2 Ex. D. 3^4 ; but see Potter v. Chambers, 
 L. R. 4, C. P. D. 69. 
 
 Where the plaintiff proved a claim, and the defendant a counter-claim for a 
 Itsser amount, the defendant, in the absence of any order as to costs, was held 
 entitled to the costs of proving his counter-claim, and of the issues so far :.s they 
 relawd thereto, Blake v. Appleyard, L. R. 3 Ex. D. 195 ; but, in Porter v. Cham- 
 bers, Ij. R. 4 C. P. D. 69, under similar circumstances, the Court refused to alter 
 the fim'ing of the jury for the ivurpose of giving the defendant costs upon his 
 counter-claim. 
 
 Though under this rule, and Order XVIII., r. 9, the que' uion whether a counter- 
 claim shall be excluded is Lot s^^ entirely in the Judge of nrst instance as to pre- 
 clude an .ippeal, he has a d^l5(^retion which will not be interfered with except in a 
 very strong case, Huggons v. Tweed, L. R. 10 Ch. D. 359. 
 
 See all the cases as to counter-claim collected in notes to sec. 16, sub-s. 4 of the 
 Act. 
 
 (c) Such statements shaU be as brief as the nature of the 
 case will admit, and the Court in adjusting the costs of the 
 action shall inquire at the instance of any party into any un- 
 necessary prolixity, and order the costs occ«;sioned by such 
 prolixity to be borne by the party chargeable with the same. 
 
 See Eng. R. Sup. C, O. XIX., r. 2 ; G. O. Chy. No 71. 
 'A(ijiisting the rosfo. " —The Court will generivlly leave to the taxing master the 
 
 O. X¥. 
 B.9. 
 
 
 son, S.Tur. N. S. 8,35. By the next rule and by O. L., r. 8, the ta>ai;g officer has 
 power to disallow unnecessary matter without any special referon e in the decree 
 or order. 
 
 ' "Pr<rfta:i<y."— See notes to 0. XXIII., r. 1, 
 
':;: 
 
 II 
 
 220 
 
 U,9. 
 
 ■ 1 j\ 
 
 it 
 
 JUDICATURE ACT. 
 
 {d) The taxing officer shall have the like duty where the 
 Court has not made such order. 
 
 3. A defendant in an action may set-off, or set up by way 
 of counter-claim, against the claims of the plaintiff, any right 
 or claim whether such set-oflf or counter-claim sound in 
 damages or not. 
 
 (a) Such set-off or counter-claim shall have the same effect 
 as a statement of claim in a cross-action, so as to enable the 
 Court to pronounce a final judgment in the same action, both 
 on the original and on the cross claim. 
 
 (6) But the Court or a Judge may, on the application of 
 the plaintiff before trial, if in the opinion of the Court or 
 Judge such set-off or counter-claim cannot be conreniently 
 disposed of in the pending action, or ought not to be allowed, 
 refuse permission to the defendant to avail himself thereof. 
 
 See Eng. R. Sup. C, O, XIX., r. 3. 
 
 **Any right." — By R, S. C. c. 50, ss. 119, 120, any number of pleas could lie 
 joined without leave, subject cniy to their being struck out if framed so aa to pre- 
 judice, embarrass or deltvy the fair trial of the action. But leave was necessary to 
 plead and demur at the same time (sec. 118). By O. XV., r. 21, no plea can be 
 joij.-'' with a plea of not guilty by Statute. As to joining other defencaa with a 
 plea ot payment into Court, see noteo to 0. XXVI., r. 1. 
 
 " Set-off or counter-claim." — See notes to s. 16, sub-s. 4. 
 
 138. 
 
 4. Every pleading shall contain as concisely as may be a 
 statement of the material facts on which the party pleading 
 relies, but not the evidence by which they are to be proved; 
 such statement shall be divided into paragraphs, numbered con- 
 secutively ; and each paragraph shall contain, as nearly as may 
 be, a separate allegation; dates, sums and numbers shall be 
 expressed in figures and not in words; signature of counsel 
 shall not be necessary ; forms similar to those in Appendix 
 (D) hereto may be used. 
 
 See Eng. Sup. C, 0. XIX., r. 4. 
 
 This is in substance p- Ftatement of the Chancery rule of pleading, see G. C). 
 Chy.,No 122. 
 
 " An concisely as map 6c."- -As to mere prolixity being a ground for striking out 
 a pleading, see notes to O. XXIII., r. 1. 
 
 " Material, facU, but not the nidence." — A bill in Chancery was at one time com- 
 posed of nine parts ; (1) The address to the person or persons holding the great 
 seal ; (2) The names and addresses of the persons complainant ; (3) The statement 
 
PLEADING. 
 
 221 
 
 o. 
 
 B. 
 
 of the plaintiff's case, commonly called the statin? part ; (4) The charge that the 
 defendant unlawfully confederated with others to deprive the plaintiff of his right ; 
 (5) The charging part ; (6) The averment of jurisdiction, or the statement that the 
 plaintiff has no remedy without the assistance of a Court of Equity ; (7) The in- 
 terrogating part ; (8) The prayer for relief ; (9) The prayer that process might 
 issue requiring the defendants to api)ear and answer the bill ; to which, sometimes, 
 was added a prayer for a provisional writ such as an injunction or a nc exeat regno, 
 for the purpose of restraining some proceedings on the part of the defendant, or 
 of preventing his iroing out of the jurisdiction till he haa answered the bill. And 
 this part sometimes contained a prayer that some of the defendants, upon being 
 served with a copy of the bill, might be bound by all the proceedings in the cause. 
 The form of a bill underwent some modifications, and at the time preceding the 
 Judicature Act might be said to consist of the first, second, third and eighth parts, 
 above enumerated only, the charging part being, indeed, still occasionally inserted, 
 but practically included in the stating part. The averment of jurisdiction was also 
 still sometimes inserted, but it might also, when inserted, be considered as a portion 
 of the stating part. The fourth, seventh and ninth parts were omitted. The 
 prayer for an injunction or a ne exeat regno or that certain formal parties might 
 be bound, upon being served with a copy of the bill, was inserted when it formed 
 part of the relief adapted .o the circumstances of the cases ; but then it formed a 
 portion of the eighth part. 
 
 Pleadings should now only consist of two parts, viz : — the statement of the mat- 
 erial facts required by above rule, and the relief asked as required by O. XV., r. 9. 
 The chai'ging part of the bill should now be omitted. Watson v. Rodwell, 45 L. J. 
 Chy. 745 ; Hamner v. Flight, 35 L. T., N. S. 127 ; 24 W. R. 346. 
 
 Under the Chancery form of i leadinp any defences to which special reply had 
 to be made, were met by a statemi nt in tiie bill, either as originally filed or by am- 
 endment setting out the contenti^ n of the defendant as a pretence on his part, and 
 the reply which the plaintiff desired to make to 3uch pretence. Under the Com- 
 mons Law system such reply was embodied in the replication. The Common Law 
 practice has been adopted by the Judicature Act and rules, and it has been held 
 that a plaintiff should not plead any facts in anticipation of a defence, but should 
 set them up in his replication, Earp v. Hend ?rson, L. B. 3 Ch. D. 254 ; Hall v. Eve, 
 L. R. 4 Ch. D. 341. 
 
 A plaintiff in his statement of claim need r ot state under what particular form 
 of action he is proceeding, nor in what particular legal relation he claims to stand 
 to the defendant, Hamner v. Flight, 35 L. T. N. S. 127 ; Metropolitan Railway 
 V. Defries, 36 L. T. X. S. 150. 
 
 Where the plaintiff seeks relief in i'-^spect of several distinct claims or causes of 
 complaint founded upon separate and distinct facts they shall be stated as far as may 
 be separately and distinctly, r. 10. Ti'e prayer however must be put at t.^a 
 end of all, and faits stated in a pleading neid not be assigned to any particular part 
 i)t the prayer, Wi'.tson v. Hawkins 24 W. R. 884. 
 
 No averment v hich is scandalous must be introduced, see O. XXIII. , r. 1. 
 
 The 
 in 8upp< 
 Lefevre, 
 L. R. 7Ch. 
 
 In an action for the recovery of land of which the plaintiff has never ))een in 
 possession, the statement of claim must allege the nature of the deeds and docu- 
 me^*,s upon which he relies in deducing his title from the p'lr.wns under wh(.m he 
 claims ;_ and a general statement that I ly assurances, willa, docTiments and Crown 
 ^rapts in the jiossession of the plaintiff, without further describing them, the 
 plaintiff is entitled to the laml is emljarrassing and lia))le to be struck out, Phillips 
 V. Phillips, L. R. 4 Q. B. D. 127 ; but see notes to O. XXIII., r. 1. 
 
 A daim alleged that the defendant wrote and stut to a chief constable letters 
 charging the plaintiff with a murder, and recpiireil hit* arrest ; also that the defend- 
 ant sert to_a superintendent of police charging the plamtiff with the muidor, and 
 required his arrest, and that the sviperintendent, in consequence, endeavoured to 
 .arrest the plaintiff on several occp-sions, but was unable to meet with him, that 
 the defendant ha<l no reasonable or probable cause for malting the charge, and \,he 
 name was false, and made nialicionbiy, and with intent t" injure the phaintiff. 
 whose credit and reputation were thereby injured. Held, on demurrer, that the 
 
 XT 
 
 4. 
 
 r 
 
I' 
 
 222 
 
 JUDICATURE ACT. 
 
 If 
 
 O. XV. claim was bad ; because, if it was for libel or slander, the defamatory words were 
 
 B. 4. not set out as they ought to be ; if for malicious prosecution, none had been insti- 
 
 tuted before a judicial officer, Harris v. Warre, L. R. 4 0. P. D. 125. 
 
 Where in an action in the Common Law Divisions the defendant relies upon 
 such a defence as before the Judicature Act was deemed equitable, he is entitled 
 (subject to the modifications introduced by that Act) to state the '■ x;ts in his pleading 
 in such manner as they might have been stated in an answer ti bill in the Courb 
 of Chancery ; and a defence stating many distinct facts which taken as a whole, 
 would in Equity have constituted ground for relief against the action, is not liable 
 to be amended or struck out as embarrassing under this rule. Heap v. Harris, L. 
 R. 2 Q. B. D. 630. 
 
 A plea to an action on a contract that the plaintiff was suing on his own behalf, 
 whereas he made tho contract as agent for a company, will not be struck out as 
 embarrassing, Golding v. Th" Wharton Salt Works Co., L. R. 1 Q. B. D. 374. 
 
 Charges and statements which would not have been improper under the former 
 system may neverthe 3ss be struck out under the Judicature Act, Watson v. Rodwell, 
 L. R. 3 Ch. D. 380. 
 
 As to striking out embarrassing pleadings, see notes to O. XXIII., r. 1. 
 
 The Chancery and Common Law rules of pleading as to the effect of not deny- 
 ing an allegation in the previous pleading wore.directly opposed to each other. The 
 Chancei-y system provided that tne silence of any pleading as to any allegation in 
 the previous pleading was not to be taken as an admission of its truth (G. 0. Chy. 
 No. 123), while by the Common Law every allegation not denied was not placed in 
 issue. The Judicature Act and rules In England adopt the Common Law system 
 (O. XIX., r. 17). The Ontario Act and rules follow the Chancery practice (O. 
 XV., r. 24). 
 
 Inconsistent dtfences.— See notes to O. XV., r. 10. 
 
 "Forms similar to those in the Appendix." — The forms of defence are in almost 
 all cases copies of those given in the appendix to the English Act and deny specifi- 
 cally the various allegations of the statement of claim, see I'orms Nos. 44, 46, 55, 
 57, 60, 73. This fact; considered with O. XV., r. 23, may leave some doubt as to 
 the necessity of making a specific denial under circumstances similar to those 
 given in the forms. See, however, notes to this rule ante. 
 
 " Not the evidence." — This rule applies to admissions as well as to other evidence, 
 Davy V. Garrett, L. R. 7 Gh. D. 473 ; Askew v. N. B, Ry. Co., W. N. (1875) 238 ; 
 and see Blake v. Albion, 24 W. R. 677. 
 
 139. 
 
 5. Every pleading may be either printed or written, or partly 
 printed and partly written, but no more than 4 copies of any 
 pleading or other document are to be allowed to any party in 
 a cause or master, exclusive of the draft, but inclusive of all other 
 copies that may be required, or made, in the progress of the 
 cause. 
 
 See Eng. R. Sup. C, O. XIX., r. 5; G. O. I'hy., Nos. 66, 403. 
 
 " Inclusiii o/ all other copies." — Doo this include copies for briefs? Such copies 
 were expressly included in the Chaiuory Order No. 403. 
 
 130. 
 
 6. If more than 3 copies, exclusi\o of the draft, are required 
 of any pleading or other document, the party may have the 
 pleading or document printed for the purposes of the cause or 
 matter, and in that case he shall in lieu of all charges for copien 
 
PLEADING. 
 
 223 
 
 he allowed 30 cents per folio of the pleading or document, and **• ^^' 
 his reasonable disbursements of procuring the same to be **• *" 
 printed. 
 
 See Eng. R. Sup. C, O. XIX., r. 5; G. 0. Chy. No. 404. 
 
 "50 cents per folio."— The present taxing officer of the Court of Chancery holds 
 that this amount in to be taken not only "in lieu of all charges " for making the 
 copies, but covers also all attendances in connection with the printing. His pre- 
 decessor thought dififerently. 
 
 131. 
 
 7. Every pleading or other document required to be deli- 
 vered to a party, or between parties, shall be delivered to the 
 solicitor of every party who appears by a solicitor, or to the 
 party if he does not appear by a solicitor; bat if no appearance 
 has been 3ntered for any party, then such pleading or document 
 shall be delivered by beinj.* posted up in the office from which 
 the writ of summons was issued. 
 
 See Eng. R. Sup. C, 0. XIX., )■. 5. 
 
 A notice of motion for a judgment is a document which may be delivered in 
 <'a8e a defendant does not appear, by posting it up pursuant to this rule, Dymond 
 V. Croft, L. R. 3 Ch. D. 512 ; Morton v. Miller, lb. 516 ; Parsons v. Harris, L. R. 
 6 Ch. D. 694. 
 
 133. 
 
 8. Every pleading in an action shall be delivered between 
 parties, and shall be marked on the face with the date of the 
 day on which it is filed, and with the reference to the Division 
 to which the action is assigned, the title of the action, the 
 description of the pleading, and the name and place of business 
 of the solicitor and agent (if any) of the party filing the same, 
 or the name and address of the party filing the same if he 
 does not act by a solicitor. 
 
 See Eng. R. Sup. C, 0. XIX., r. 7. 
 
 " Marked."— See the Forms, No. 38, et acq. 
 
 rule, 
 
 "Fiferf."— The word " delivered " occupies a corresponding place in the English 
 
 133. 
 
 9. Every statement of claim shall state specifically the relief 
 which the plaintiff" claims, either simply or in the alternative, 
 and may also ask for general relief. And the same rule shall 
 a))ply to any counter-claim made, or relief claimed by the de- 
 fendant, in his statement of defence. If the plaintiff's claim 
 be for discovery only, the statement of claim shall shew it. 
 
 See Eng. R. Sup. C, O. XIX., r. 8. 
 "i4?<enia<u'e."— See notes to 0. XIT., r. 1. 
 
 r 
 

 ' 
 
 In. 
 
 \i • 
 
 224 
 
 O. XV. 
 B. to. 
 
 JUDICATURE ACT. 
 
 134. 
 
 10. Where the plaintiff seeks relief in respect of several 
 distinct claims or causes of complaint founded upon separate 
 and distinct facts, they shall be stated, as far as may be, sepa- 
 rately and distinctly. And the same rule shall apply where 
 the defendant relies upon several distinct grounds of defence, 
 set-off, or counter-claim founded upon separate and distinct 
 facts. 
 
 See Eng. R. Sup. C, 0. XIX., r. 9. 
 
 "Several distinct claims." — See O. XIII., rr. 1-9, 
 
 ^* Distinct grounds of defence." — As to a plea of payment into Court, see 0. 
 XXVI., r. 1. 
 
 Set-off 01' counter-claim. — The English rule (0. XIX., r.|10.) which provides when 
 any defendant seeks to rely upon any facts as supporting a right of set-off or counter- 
 claim, he shall in his statement of defence, state specifically that he does so by 
 way of set-off or counter-claim, is not a part of the Ontario rules. 
 
 135. 
 
 11. Where the contents of any document are material, it 
 shall be sufficient in any pleading to state the effect thereof as 
 briefly as possible, without setting out the whole or any part 
 thereof unless the precise words of the document or any part 
 thereof are material. . 
 
 See Eng. R. Sup. C, O. XIX., r. 24. 
 
 " .''recise words," — In actions for libel or slander, the precise words complained 
 o" r"->Ht be set (^ut, Harris v. Warre, L. R. 4 C. P. D. 125; Bradlaugh v. the 
 Queen, L. R. G Q. B. D. 607. In actions for the construction of wills the precise 
 words are often necessary. 
 
 136. 
 
 12. Where it is material to allege malice, fraudulent in- 
 tention, knov/ledge or otlier condition of tb i mmd of any per- 
 son, it shall be sufficient to allege ihe same as a fact, without 
 setting out the circumstances from which the same is to be 
 inferred. 
 
 See Eng. R. Sup. C, O. XIX., r. 25. 
 
 137. 
 
 13. Where it is material to allege notice to any person of 
 any fact, matter or thing, it shall be sufficient to allege such 
 notice as a fact, unless the form or the precise terms of such 
 notice is material. 
 
 See Eng. R. Sup. C, 0. XIX., r. 26. 
 
 I 
 
PLEADING. 
 
 225 
 
 " Material to allege notice."— A bill setting forth that one of the defendants pro- O. XV. 
 cured a conveyance from the plaintiff by fraud, and afterwards mortgaged the R. 13. 
 ])roperty to another defendant is not demurrable, for want of a charge that the 
 latter had notice of the fraud at, or before, he received his mortgage. It is for the 
 (tefendiint i.i such case to set up the defence of no notice, Kitchen v. Kitchen, 
 18 Gr. 232. 
 
 138. 
 
 l-i. Where any contract or any relation between any persons 
 does not arise from an express agreement, but is to be implied 
 from a series of letters or conversations, or otherwise from a 
 number of circumstances, it shall be sufficient to allege such 
 contract or relation as a fact, and to refer generally to such let- 
 ters, conversations, or circumstances without setting them out 
 in detail ; and if in such a case, the person so pleading de&iies 
 to rely in the alternative upon more contracts or relations 
 than one, as to be implied from such circumstances, he may 
 state the same in the alternative. 
 
 See Eng. R. Sup. C, O. XIX., r. 27. 
 
 For an example of a statement of claim authorized by this rule, see Forms, No. 
 
 "In the alternative.'"- Cunningham & Mattinson suggest that the proper 
 Cdurse to adopt is to state the essential facts, and then to state that the party would 
 contend that so-and-so was the contract which resulted from these facts, or, in the 
 alternative, that— state the other possible contract which was the contract produced i 
 
 139. 
 
 15. Neither party need in any pleading allege any matter of 
 fact which the law presumes in his favour, or as to which the 
 burden of proof lies upon the other side, unless the same has 
 first been specifically denied. 
 
 See Eng. R. Sup. C, O. XIX., r. :.8. 
 
 For examples, see l\,."ms, Nos. 45 & 'hi. 
 
 Pleadings under tho .Judicature Act are to be statements of facts : therefore a 
 pWntiff neeil not state uiiiler what form of action he is proceeding, nor in what 
 rarticular legal relation he claims to stand to the ilefendant. Those are inferences 
 of law for the Court to draw from the facts as admitted on the pleadings or proved 
 at the trial, Lord Hanmer r. Flight, 24 W. K. 346. 
 
 [E.g. — Consideration for a bill of exchange where the plain- 
 tiff sues only on the bill, and not for the consideration as a 
 substantive ground of claim.] 
 
 140. 
 
 IG. If either party wishes to deny the right of any other 
 party to claim as executor, or as trustee, or as assignee 
 in insolvency, or in any representative or other alleged 
 capacity, or the alleged constitution of any partnership firm, 
 
 I* 
 
 
226 
 
 O. XT. 
 fl. 10. 
 
 ;Mi 
 
 ' JUDICATURE ACT. 
 
 he shall deny the same specifically, or the same will be taken 
 to be admitted. 
 
 See Eng. R. Sup. C, 0. XIX., r. 11. 
 
 In McEflwards v. McLean, 43 U. C. R. 454, to an action by an official assignee, 
 the defendant filed a plea denying the goods to be the goods of the plaintiff as sucli 
 assignee :— Held, not to put in issue the plaintiff's official character as assignue. 
 
 141. 
 
 17. Where a contract is alleged in any pleading, a bare de- 
 nial of the contract by the opposite party shall be construed 
 only as a denial of the making of the contract in fact, and not 
 of its legality or its sufficiency in law, whether with reference 
 to the Statute of Frauds or otherwise. 
 
 See Eng. R. Sup. C, 0. XIX., r. 23. 
 
 " Statute of Frauds." — The effect of O. XV., r. 17, is to require that, in all cases 
 where a party intends to rely on the illegality or insufficiency in law of a contract, 
 whether with reference to the Statute of Frauds or otherwise, he must specially 
 plead such illegality or insufficiency ; and it is not sufficient to traverse allegations 
 of tlie opposite party made in anticipation of objections to the contract upon such 
 grounds, Clarke v. Callow, 46 L. J. C. L. 53. In that case, Mellish, J., said :— 
 " Before the passing of the Judicature Acts, there was a difference between the 
 practice at law and the practice in equity, in cases like the present. At law, if the 
 contract was denied, it was a matter of evidence whether the contract were one which 
 could be sued upon, or whether the remedy was barred by the Statute ; but in 
 equity, if the defendant intended to rely upon the Statute of Frauds, or any other 
 special Statute, he was compelled co make a specific averment of his intention. 
 The 23rd rule of the 19th order (Ont., O. XV., r. 17) was intended to introduce in 
 all the Courts the practice of the Court of Chancery, and I see no reason why the 
 rule should not apply in this case, rotwithstanding the allegation by the plaintiff 
 of acceptance and receipt, and the denial of that allegation by the defendant." 
 
 The above rule is an alteration of the former rule of pleading, by requiring that 
 the legalvy or sufficiency in lav^ of any contract, whether with reference to a Statute 
 or otherwise, shall be expressly traversed. 
 
 The statement of claim, in an action for specific performance, stated that the 
 predecessor in title of the plaintiff, by his agent, lawfully authorized, signed an 
 agreement with H., the predecessor in title of the defendant. The statement of 
 defence denied this in words following the words of the statement of claim, ami 
 then proceeded to state that H., the predecessor in title of the defendant, was of 
 unsound mind, and did not lawfully authorize any one as his agent to sign an agree- 
 ment, c.nd in a subsequent paragraph denied that aiw agreement was signed by H., 
 or by any person by him lawfully authorized : — Held, that under the statement 
 of defence the defendant could only enter into evidence to shew the unsoimdness 
 of mind of H., and could not enter into evidence to sbew that the agent was not 
 duly authorized, Byrd v. is^unn, L. R . 7 Ch. I). 284. 
 
 A defence founded on the Statute of Frauds cannot now be raised by denuirrer, 
 Catling V. King, L. R. 5 Ch. D. G60 ; affirmed in Shardlow v. Cotterill, W. N. 
 (1881) 2. 
 
 143. 
 
 18. No plea or defence shall be pleaded in abatement. 
 
 See Eng. R. Sup. C, O. XIX., r. 13. 
 
 A plea in abatement in a common law action was a plea which, without disput- 
 ing the cause of action alleged, stated facts shewing tnat the plaintiff could not 
 properly recover in the action as brought. Such a plea was generally founded 
 upon some personal disability of parties, or upon defect of parties (vide Wilson's 
 J. A. 197). 
 
 See also 0. XII., r. 15. 
 
PLEADING. 
 
 227 
 
 11 be taken 
 
 )fficial assignee, 
 laintiif as such 
 as assignue. 
 
 , a bare de- 
 e construed 
 act, and not 
 th reference 
 
 that, in all cases 
 tw of a contract, 
 ; must specially 
 verse allegations 
 itract upon such 
 llish, J., said:- 
 snce between the 
 t. At law, if the 
 ct were one which 
 Statute ; but in 
 ,uds, or any other 
 ; of his intention, 
 id to introduce in 
 [) reason why the 
 1 by the plaintitt 
 3 defendant." 
 by requiring that 
 rence to a Statute 
 
 e, stated that the 
 lorized, signed an 
 The statement of 
 lent of claim, and 
 defendant, was of 
 t to sign an agree- 
 was signed by H.. 
 der the statement 
 J the unsoundness 
 the agent was not 
 
 ised by demurrer, 
 CotteriU, W. N- 
 
 btement. 
 
 3h, without disput- 
 
 plaintiff could not 
 
 L'enerally founded 
 
 rties ^vide Wilson s 
 
 143. 
 
 19. No new assignment shall hereafter be necessary or used. •• *^' 
 But everything which has heretofore been alleged by way of ** '** 
 new assignment is hereafter to be introduced by amendment of 
 the statement of claim. 
 
 " New Assignment." — A new assignment is a form of pleading which sometimes 
 arose from the generality of the declaration, when, the complaint not having been 
 set out with sufficient precision, it became necessary from the evasiveness of the 
 plei to reassign the cause of action with fresh particulars, Wharton's Law Lexicon, 
 641. The necessity for a new assignment generally arises in two ways. First, 
 where the plaintiff complains of one of severaJ trespasses, in a form so general that 
 it is api)licable to any of them, and a trespass in respect of which the action is not 
 brought is either by mistake or design, justified by the defendant ; Secondly, where 
 the defendant pleads justification of the trespass complained of, but the plaintiff 
 maintains that there has been an excess beyond wliat the circumstances justify. 
 One object of a new assignment is to make certain what the plea has rendered 
 uncertain; as where the defendant mistakes the nature of the plaintiff's demand, 
 and pleads a good answer to something which is not the cause of action sued upon, 
 Harrison's Com. Law Pro. Act (2nd ed.) 149. 
 
 By the Com. Law Pro. Act, R. S. O., c. 50, s. 123, one new assignment only 
 was allowed to any number of pleas to the same cause of action. 
 
 144. 
 
 20. No defendant in an action for the recovery of land who 
 is in possession by himself or his tenant need plead his title, 
 unless his defence depends on an equitable estate or right, or 
 he claims relief upon any equitable ground against any right 
 or title asserted by the plaintiff. But, except in the cases 
 hereinbefore mentioned, it shall be sufficient to state by way 
 of defence that he is so in possession. And he may neveithe- 
 less rely upon any ground of defence which he can prove, 
 except as hereinbefore mentioned. 
 
 See Eng. R. Sup. C, O. XIX., r. 15; R. S. O., c. 40, s. 37 ; c. 51, s. 14. 
 
 Prior to this rule it was not necessary to state that the defendant was in pos- 
 session, a mere appearance put the plaintiff to the proof of his title. 
 
 "Hereinbefore provided." — This does not include rule 23 of this order, wbich 
 requires every defence to be raised which if not rP!s°d would be likely to take the 
 pposite party by surprise. 
 
 145. 
 
 21. Nothing in these Rules contained shall affect the right 
 of any defendant to plead not guilty by statute. And every 
 defence of not guilty by statute shall have the same effect as 
 a plea of not guilty by statute has heretofore had. But if the 
 defendant so plead he shall not plead any other defence with- 
 out the leave of the Court or a Judge. 
 
 See Eng. R. Sup. C, 0. XIX., r. 16; Reg.-Gen. T. T. (185G) No. 21 (Ont.) 
 
 Not guilty by Statute " is a plea of the general issue by a defendant in a civil 
 ac tion when he intends to give special matter in evidence by virtue of some Act or 
 Acts of Parliament. 
 
 -If. 
 
il 
 
 ) 
 
 \ 
 
 M 
 
 I 
 
 I 
 
 n 
 
 228 JUDICATURE ACT. 
 
 O. %.V. ^ In every case in which a defendant shall plead the general issue, intending to 
 
 B. ill. give the special matter in evidence by virtue of an Act of Parliament, he ahall 
 
 insert in the margin of the plea "by Statute" [or "according to the Statute"] 
 (Robertson v. Cooley, et al., 7 U. C., R. 21), together with the year or years of 
 the reign in which tne Act or Acts of Parliament upon which he relies for that 
 purpose were passed, and ako the chapter and nection of each of such Acts, and 
 Hhall specify whether such Acts are public or otherwise — otherwise such plea shall 
 1)6 taken not to have been pleaded by virtue of any Act of Parliament, and such 
 memorandum shall be inserted in the margin of the issue and of the ATtwi Print 
 record, Reg.-Gen,, T. T. (1856) No. 21 (Ont.) 
 
 146. 
 
 22. Admissions are, in all cases where it is practicable, to be 
 by reference to the numbers of the paragraphs in the pleadi)ig 
 to which they relate, with such qualifications as may be neces- 
 sary or proper for protecting the interests of the party making 
 such admissions: thus — "the defendant admits the allegations 
 made in the first, second and third paragraphs of the plaintiff's 
 claim." 
 
 See G. O. Chy. 125. 151. 
 
 In Chancery it was usual to insert a paragraph in the answer as follows :— "All 
 admissions herein made are so made for the purpose of this suit only." The ad- 
 missions may be made thus : — " The defendant admits the allegations made in the 
 first, second and third paragraphs of the plaintiff's claim." By O. XXVIII., r. 1, 
 each party is to admit such of the material allegations contained in the statement 
 of claim or defence of the opposite party as are true ; or he may give notice by his 
 own statement or otherwise, that ne admits, for the purposes of the action, the 
 truth of the case generally, or of any part of the case stated or referred to in the state- 
 ment of claim or defence of the opposite, or any other, party. 
 
 In an action for damages for an alleged infringement of the plaintiff's copyright 
 in a song, the defendant by his statement of defence alleged that the song had not 
 Ijeen registered at Stationers' Hall until the 9th of December, 1876, and added :— 
 '"The defendant denies that the song has been duly registered, the time of the 
 first publication thereof is not truly entered in the register" : —Held, that on this 
 pleading the defendant was only entitled to prove that the time of the first publica- 
 tion had been untruly entered, and that he was not at liberty to prove that the name 
 of the publisher had been untruly stated, Collette v. Goode, L. 11. 7 Ch. D. 842. 
 
 14-7. 
 
 2.3. Each party in any pleading, not being a petition or a 
 writ of summons, must allege all such facts not appearing in 
 the previous pleading (if any), as he means to rely on, and 
 must raise all such grounds of defence or reply, as the case 
 may be, as if not so raised on the pleadings would be likely to 
 take the opposite party by surprise, or would raise new issues 
 of fact not arising out of the pleadings, as (for instance) fraud, 
 or that any claim has been barred by the Statute of Limita- 
 tions, or has been released. 
 
 See Eng. R. Sup, C, 0. XIX., r. 18. 
 
 " Statute of Limitatioiui." — In some cases under the Statute of Limitations tlie 
 right of action merely is taken away, the right itself being left unaffected. In 
 others the right also is taken away. This section applies to the former only, 
 Wakelee v. Davis, 25 W. R. GO ; Dawkins i/. Lord Penrhyn, L. R. 6 Ch. D. 318. 
 
PLEADING. 
 
 148. 
 
 229 
 
 24. Save as above otherwise provided, the silence of a plead- 
 ing as to any allegation contained in the previous pleading of the 
 opposite party is not to be construed into an implied admission 
 of the truth of such allegation ; and any allegation introduced 
 for the purpose of preventing such implied admission, and not 
 for the purpose of making intelligible the grounds of defence, 
 is to be considered impertinent. 
 
 See Eng. R. Slip. C, O. XIX., r. 21; G. O. Chy. No. 153; K. S. O., c, 50, 
 8. 117. 
 
 This rule is the direct opposite of the English O. XIX., rr. 17& 20, which are as 
 follows ; — Every allegation of fact in any pleading in an action, not being a petition 
 or summons, if not denied specifically or by necessary ini|)lication, or stated to be 
 not admitted in the pleading of the opposite party, shall be taken to be admitted, 
 except as against an infant, lunatic, or person of unsound mind, not so found by 
 inquisition, vide Baxter's J. A., p. 219. It shall not be sufficient for a defendant in 
 his defence to deny generally the facts alleged by the statement of claim, or for a 
 plaintiff in his reply to deny generally the facts alleged in a defence by way of 
 counter-claim, but each party must deal specifically with each allegation of fact 
 of which he does not admit the truth, Baxter's J. A., 220. 
 
 Prior to the Judicature Act it was a cardinal principle of Common Law plead- 
 ing that every allegation which it was desired to put in issue must be specifically 
 denied, and tnat every such allegation not denied was deemed to be admitted. In 
 Chancery, however, the above rule was one of the General Orders of the Court. The 
 English rule adopts the Common Law system ; the Ontario adopts the Chancery. 
 The English cases upon this point, therefore, will not apply in Ontario. The wide 
 difference between the systems must be observed. Under the English it may be 
 said that the defendant raises the issues which are to be tried ; under the Ontario 
 the plaintiff raises the issues. Plaintiff's counsel sometimes attempts to shield 
 himself from difficulty by contending that "the defendant has not raised that 
 point," and the answer usually given by V.-C. Blake is "You raised it yourself" — 
 an answer which contains the pith of the Chancery system. What has been 
 said, however, must be taken with this (jualification, that each party "must allege 
 all such facts not appearing in the previous pleading (if any), as he means to rely 
 on, and must raise all such grounds of defence or reply, as the case may be, as if 
 not raised on the pleadings would be likely to take the opposite party by surprise, 
 or would raise new issues of fact not arising out of the pleadings, as (for instance) 
 fraud, or that any claim has been barred by the Statute of Limitations, or has been 
 released," O. XV., r. 23. It is not necessary to deny any allegation in the previous 
 pleading in order that it may be put in issue, but if it is desired to raise any issue 
 other than that intended by the previous pleading, then the facts raising such new 
 issue must be pleaded. 
 
 149. 
 
 25. No pleading, not being a petition or summons, shall, ex- 
 cept by way of amendment, raise any new ground of claim or 
 contain any allegation of fact inconsistent with the previous 
 pleadings of the party pleading the same. 
 
 See Eng. R. Sup. C, O. XV., r. 25. 
 
 " Ain^ndmenV—As to powers of amendment, see O. XXIII. 
 
 _ " Inconsistent with the previous pleadings." — In Chancery it has been customary 
 in amending the bill to make such changes as '">m proper or advi^.ahle irrespective 
 of the former allegations. But a complete chn f the bill so as to raise an entirely 
 
 new case was not permitted, McGillivray v. J key, 6 Pr. li. 5G. 
 
 O. XV. 
 B. 94. 
 
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 JUDICATURE ACT. 
 
 •. xr. 
 
 auam. 
 
 160. 
 
 26. Delivering a statement of claim or defence or other plead- 
 ing 01 proceeding, when mentioned or referred to in these 
 Orders, includes filing, where, by the practice of the Courts 
 heret >> '3 ov under these Orders, such statement, pleading or 
 procbC'i'r? oiight to be filed. 
 
 There Is "o 2-ijgIish Rule corresponding to this. 
 
 ORDER XVI. 
 Pleading Matters arising pending the Action. 
 
 J 
 
 .;v.' 
 
 O. XVI. 
 B. 1. 
 
 151. 
 
 1. Any ground of defence which has arisen after action 
 brought, but before the defendant has delivered his statement 
 of defence, may be pleaded by the defendant in his statement 
 of defence, either alone or together with other grounds of 
 defence. 
 
 See Eng. R. Sup. C, 0. XX., r. 1. 
 
 Between a plea of any matter arising after the commencement of an action as 
 contemplated by this rule, and a plea of puis darriin continuance provided for by 
 rale 3 of this Order, ther3 is this difference, the latter must express the ground of 
 defence to have arisen since the last plea, but the pleas here intended may express 
 the ground of defence as arising after the commencement of the action, which may 
 be at any time after writ issued and before plea pleaded. 
 
 The effect of this and the three following rules is the same as that of the roles, 
 22 & 23 as to Pleading of Trinity Term, 1856, Foster v. Gamgee, L. R. 1 Q. B. D. 
 666. These rules are as follows : — 
 
 Rule 22. A plea containing a defence arising after the commencement of the 
 action, may be pleaded, together with pleas of defences arising before the commence- 
 ment of the action ; provided that the plaintiff may confess such plea and there- 
 upon shall be entitled to the costs of the cause, up to the time of pleaiding such first 
 mentioned plea. 
 
 Rule 23. When a plea is pleaded with an allegation that the matter of defence 
 arose after the last nleading, the plaintiff shall be at liberty to confess such plea, 
 and shall be entitlea to the costs of the cause up to the time of pleading such plea ; 
 provided that this and the preceding rule shall not apply to the case of such plea, 
 pleaded by one or more only out of several defendants. 
 
 By the Common Law Procedure Act, R. S. O., c. SO, s. 106, "Any defence 
 arising after the commencement of the action shall be pleaded according to the fact, 
 without any formal commencement or conclusion ; and any plea which does not 
 state whether the defence therein set up arose before or afteraction shall be deemed 
 to be a plea of matter arising before action ; see, as to this section, Harrison's 
 Oommon Law Procedure Act (2nd ed.) 116. 
 
 A compromise of a suit having been entered into before answer, the defendant 
 may set up the compromise in his answer, and pray, by way of cross relief, that it 
 be specifically performed, and if the plaintiff does not diligently proceed with the 
 ■ait, the defendant is entitled to move to dismiss for want of proseoution. Small v. 
 Union Permanent Building Society, 6 Pr. R. 206. 
 
PLEADINQ MATTERS ARISING P£NDINO THE ACTION. 
 
 231 
 
 After issue joined, one of two plainL'ffs gave to the defendant a release, under O* XVI* 
 seal, uf all actions and demands. The defendant thereupon mo^ed to stay all pro- r, i. 
 ceedinifs in the suit : — Held, that the release should oe pleaded, and that the 
 defendant was not entitled to a stay of proceedings. The other plaintiff was allowed 
 to strike out the name of the releasing plaintiff, and to amend the declaration, 
 MoAlpine & Keen v. Carling, 8 Fr. B. 171. 
 
 In the Original Hartlepool Collieries Co. v. Gibb, 46 L. J. Ch. 311, the Master 
 uf the Bolls gave it as his opinion that there could not be a counter-claim in respect 
 of matter which arose after the issue of the writ, unless by leave of the Court : but, 
 in Ellis V. Munson, 35 L. T. 585, the Court of Appeal, assuming that there could 
 be such a counter-claim, decided that it should be pleaded as so arising, so that the 
 plaintiff might be able to confess the plea and sign judgment for costs ; and if it 
 was not so uleaded, the plaintiff should take out a summons to strike it out, unless 
 it be amended. 
 
 152. 
 
 2. If, after a statement of defence has been delivered^ any 
 ground of defence arises to any set-off or counter-claim alleged 
 therein by the defendant, it may be pleaded by the plaintiff 
 in reply, or be introduced by amendment into tbo statement of 
 claim, within 3 weeks after the defence or the last of the 
 defences shall have been delivered, unless the time shall be 
 extended by the Court or a Judge. 
 
 Eng. R. Sup. C, O. XX., r. 12 ; O. XXIV., r. 1 ; E. S. O. c. 50, s. 94 ; Eng. 
 C. L. P. Act of 1852, s. 53 ; G. O. Chy., Nos. 149-155. 
 
 " Introduced by amendment."— ^o order is required. The amendment is made 
 upon filing an affidavit that the matter arose within eight days next before the day 
 of making the amendment, O. XVI., r. 5. 
 
 '• Within 3 weeks." — As to computation of time see 0. LII. 
 
 •' Last of the tfe/cnccs."— Under the former Clmncery practice it was held that 
 the expression "the last of several answers," meant 'he last of the several answers 
 filed by several defendants, Dalton v. Hayter, 7 Beav. 586 ; Lester v. Archdale, 9 
 Beav. 156 : and not the last answer filed at the time of application, Arnold v, 
 Arnold, 9 Beav. 206 ; Collett v. Preston, 3 Mac. & G. 432. 
 
 " Time shall he extended."— See O. XVI., r. 6 ; O. LII., r. 9. 
 
 " Court or a Judge."— See notes to O. XVI., r. 6. 
 
 " Costa."— Where the defendant, after pleading by leave of a Judge, withdraws 
 his plea and pleads matter of defence arising afterwards, and the plaintiff confesses 
 such plea, the plaintiff is entitled to his costs up to the time of pleading such plea, 
 Howard v. Brown, 1 Ex. N. S. 694 ; and see rules of pleading. Trinity Term, 1856, 
 Nos. 22 and 23. 
 
 153. 
 
 3. Where any ground of defence arises after the defend- 
 ant has delivered his statement of defence, he may within 8 
 days after such ground of defence has arisen, deliver a further 
 defence setting forth the same, or, introduce the same by 
 amendment into his statement of defence. 
 
 See Eng. R. Sup. C, 0. XX., r. 2; R. S. C, c. 50. ss. 106, 107 ; Reg. Gen. 
 T. T. (1856), Nos. 22, 23 (Ont) ; Eng. C. L. P. Act of 1852, ss. 68, 69. 
 
 " Within 8 daifs." — As to computation of time, see Order LII. 
 
 "iWii-er."— Delivery in this case includes filing, see 0. XV., r. 26. 
 
 "Amendment."- See O. XVL, r. 5; 0. XXIII., r. 9. 
 
 ISO 
 
 il 
 
232 
 
 JUDICATURE ACT. 
 
 O..XVI. 
 S. 4. 
 
 154. 
 
 4. Where a ground oH. defence to any set-off or counter- 
 claim arises after the expiration of 3 weeks from the time of 
 delivering the defence or the last of the defences, the plaintiff 
 within 8 days after such ground of defence has arisen, may 
 deliver a further reply setting forth the same, or may intro- 
 duce such new ground of defence into his statement of claim 
 by amendment. 
 
 See Eng. R. Sup. C, O. XX., r. 2. 
 
 " Expiration of 3 weeks." — " Within 8 days." — As to computation of time, see 
 Order LII. 
 
 " Loit of the defences."— See note to Order XVI., r. 2. 
 
 "DcKm'."— Delivery includes filing, O. XV., r. 26. 
 
 " Amaidment."—See O. XVI., r. 5; O. XXIII., r. 9. 
 
 165. 
 
 5. In any such case the amendment of the pleading filed 
 may be made without an order, on filing a prcecipe and an 
 affidavit that the matter of the amendment arose within 8 
 days, next before the day of the making of such amendment. 
 
 See R. S. O., c. 50, s. 107. 
 
 " Amendment." — as to mode of making amendment, see O. XXIII., r. 9. 
 
 " Within 8 daps." — ^As to computation of time, see O. LII. 
 
 156. 
 
 6. In cases not provided for by the preceding rules, the leave 
 of the Court or a Judge to amend the statement of claim or 
 defence, or to deliver a further defence or reply, is to be ob- 
 tained on notice supported by affidavit. 
 
 See Eng. R. Sup. C, O. XXVII. rr. 5, 6. 
 
 " (7i irt or a Judge." — Can the application be made in Chambers or before a 
 County Judge or Local Master, see U. IV., r. 1 (a). Observe that the application 
 is to be " on notice," and while applications in Court or in Chambers are made on 
 notice, O, XL VII., r. 1 ; O. XL VIII., r. L a^lications to a County Court 
 Judge or Local Master are upon summons, O. XLIX., r. 11. 
 
 See O. XXIII. , r. 1, and notes as to the exercise of discretion in granting or 
 withholding leave to amend. 
 
 157. 
 
 7. Where any defendant, in his statement of defence, 
 whether by way of amendment or otherwise, alleges any ground 
 of defence which has arisen after the commencement of the 
 action, the plaintiff may deliver a confession of such defence ; 
 which confession may be in the Form No. 17 in Appendix (B) 
 hereto, with such variations as circumstances may require ; and 
 
PLEADING MATTERS ARISING PENDING THE ACTION. 
 
 233 
 
 
 Tie may thereupon sign judgment for his costs up to the time •• 
 of the pleading of such defence unless the Court or a Judge *' 
 shall, either before or after the delivery of such confession, 
 otherwise order. 
 
 See Eng. R. Sup. C, O. XX., r. 3. 
 
 In an action for rent and for damages for breach of covenant in not building a 
 wall, claiming also an injunction, the defendant paid money into Court to satisfy 
 the claim for rent, and pleaded performance of the covenant by building the wall 
 after the commencement of the action, and paid into Court £1 in respect of the 
 breach before action. The plaintiff took the money out of Court, confessed " the 
 defence " as to the wall, and claimed costs under this rule :— Held, that he was not 
 entitled to costs, for the statement did not amount to a "defence" within the 
 meaning of the rule, but that he was entitled to the costs of the action under Order 
 L., Callander v. Hawkins, L. R. 2 0. P. D. 592 ; and see Spurr i-. Hall, L. R. 2 
 Q. 6. D. 615. See also as to confessing and signing judgment for costs, Champion 
 V. Formby, L. R. 7 Ch. D. 373 : Newington v. Levy, L. R. 5 0. P. 607 ; L. R. G 
 C. P. (Ex. Ch.) 108. 
 
 If the^lea go to part only of the action, the plaintiff may enter a nolle prosequi 
 or discontinuance ; but if he reply or demur, and the defendant succeed, the de- 
 fendant will be entitle'^ to his costs up to the time of pleading, Lyttleton v. Cross, 
 4 B. & C. 117. 
 
 For form of judgment, see Forms, No. 165. 
 
 
 ^ M 
 
 ORDER XVII. 
 
 s: 
 
 Statement of Claim. 
 
 158. 
 
 1. The delivery of statements of claim shall be regulated as o. xvii. 
 follows : — *• ■• 
 
 C8 
 
 (a) If the defendant shall not state that he does not require 
 the delivery of a statement of claim, the plaintiff shall, unless 
 otherwise ordered by the Court or a Judge, deliver it within 
 3 months from the time of the defendant's entering his 
 appearance. 
 
 See R. Sup. C, O. XXL, r. 1 (a) ; R. S. O., c 50, s. 93. 
 
 " Shall not state." — The statement is made at the foot of the appearance, see 
 Forms, Nos. 77, 78, 80. 
 
 " Cturt or a Judge."— See notes to 0. IV., r. 1 (a). 
 
 "De^twr."— Delivery includes filing, O. XV., r. 26. 
 
 "Within^ montfu." — As to computation of time, see 0. LII. In default of 
 delivery within this period the defendant may apply to dismiss the action for want 
 
 oeuvery withra this period the 
 of prosecution, O. XXV., r. 1. 
 
 Upon 3uch an application the plaintiff was given one week's further time upon 
 payment of ooets, Higginbotham v. Aynsley, L. R. 3 Ch. D. 288. 
 
1 
 
 »1 1 
 
 i ; 
 
 
 2S4 
 
 •. X¥1I. 
 B. I. 
 
 11 
 
 
 I'! 
 
 li 
 
 JUDICATURE ACT. 
 
 In Canadian Oil Works Corporation v. Hay, W. N. (1878) 107, the writ was issued 
 on the 11th of August, 1877, but not served till ^he i2th of February, 1878 ; the 
 transactions complained of by the plaintiff took place in 1871. The writ being 
 issued kept the right of action from being barred by the Statute of Limitations. 
 The statement of claim was, by a mistake of the clerk of the plaintiff's solicitor, 
 served two days after the expiration of the time limited for such service. The 
 Vice-chancellor held that such an action ought not to be barred by a mere slip, and 
 gave the i)laintiff8 liberty to deliver the statement of claim notwithstanding the 
 lapse of time. 
 
 The Court has no jurisdiction, however, to extend the time for renewing a Writ 
 of Summons where the plaintiff's claim would, in the absence of such renewal, be 
 barred, Dyce v. Kauffman, L. R. 3 Q. B. D. 7, 340. 
 
 This rule is not to be found among the English rules, t 1 its object is not quite 
 apparent. When the writ was issued " a co^y of such w and of all indorsements 
 thereon, signed by or for the solicitor hearing the same or by the plaintiff if he 
 sued 'n person," was filed, O. III., r. 15, unless indeed the substitution in that 
 rule of the word "may " for the word " shall," in the corresponding English rule, 
 reduces it to a nullity. The words "if not filed already," used in rule 2 of this 
 order, were probably intended to have been inserted here also. 
 
 (6) If the defendant shall state that he does not require the 
 delivery of a statement of claim, the plaintiff shall file a copy 
 of the summons with all indorsements thereon within the same 
 time. 
 
 (c) The plaintiff may, if he think fit, deliver a statement of 
 claim, with the writ of summons, or notice in lieu of writ of 
 summons, or it any time afterwards, either before or after 
 appearance, and although the defendant may have appeared 
 and stated that he does not require the delivery of a statement 
 of claim : Provided that in no case where a defendant has ap- 
 peared shall a statement bo delivered more than 3 months 
 after the appearance has been entered, unless otherwise ordered 
 by the Court or a Judge. 
 
 See Eng. R. Sup. C, O. 21, r. 1 (6). 
 
 "Notice in lieu of writ of summons." — The notice is served when the defendant is 
 a foreigner resident out of the jurisdiction, O. II., r. 4. 
 
 " More than 3 »io»<A«."— See 0. XVII., r. 1 (a) and notes. 
 
 (d) Where a plaintiff delivers a statement of claim without 
 being required to do so, the Court or a Judge may make such 
 order as to the costs occasioned thereby as shall seem just, if 
 it appears that the delivery of a statement ot claim was un- 
 necessary or impropei". 
 
 See Eng. R, Sup. C, 0. 21, r. 1 (c). 
 
 (e) The taxing officer shall have the same duty if no order 
 is made by the Court or a Judge. 
 
 See Eng. R. Sup. C, Aug. 12, 1875, r. 18 ; O. L., r. 11, pat. 
 
STATEMENT OF CLAIM. 
 
 235 
 
 if 
 
 169. 
 
 2. Where the writ is specially indorsed and the defendant 
 has not dispensed with a statement of claim, it shall be suffi- 
 cient for the plaintiff to file a copy of the writ, with a copy of 
 the special indorsement thereon, if not filed already, and deliver 
 as his statement of claim a notice to the effect that his claim is 
 that which appears by the indorsement upon the writ, unless 
 the Court or a Judge shall order him to deliver a further state- 
 ment. 
 
 O. XVII. 
 B. 'J. 
 
 (a) Such notice may be either written or printed, or partly 
 written and partly printed, and may be in the Form No. 16 in 
 Appendix (B) hereto, and shall be marked on the face in the 
 same manner as i<« required in the case of an ordinary state- 
 ment of claim. 
 
 (6) When the plaintiff is ordered to deliver such further state- 
 ment it shall be delivered within such time as by such order 
 shall be directed ; and if no time be so limited then within the 
 time prescribed by Rule 1 of this Order. 
 
 See Eng. R. Sup. C, O. 21, r. 4. 
 
 "Spedalli/ endorsed." — See 0. III., r. 5. 
 
 " File a copy of the writ." — These words are not in the corresponding English 
 rule ; see notes to rule 1 (6) of this order. 
 
 "As hu statement of claim, a notice." — This notice will make the indorsement a 
 pleading, and it may be demurred to, Robertson v, Howard, 26 W. R. 683. 
 
 " Court or Judge." — See notes to O. IV., r. 1 (a). 
 
 " A further statement— particulars." — Upon an application for a further state- 
 ment, an order may be made either for a statement of claim or for particulars, 
 Cotton V. Housman, 2 Charley's Cases (Chambers) 36 ; Schomberg v. Zoebelli, Ih. 
 The Courts have power, irrespective of statutory enactment, to direct delivery of 
 particulars, Bulnois v. McKenzie, 4 Ring. N. C. 127 ; Luck v. Handley, 4 Ex. 486. 
 Begulse Generales, T. T., 1866, No. 20, requiring particulars to be delivered with 
 a declaration on the common money and otner general counts is, of course, super- 
 seded by the new practice. Nos. 21 & 22, however, are probably in force. Tney 
 are as follows : (21) A summons for particulars, and order thereon, may be obtained 
 by a defendant before appearance, and may be made, if the Judge thinks fit, without 
 the production of any affidavit. (22) A defendant shall be allowed the same time 
 for pleading after the delivery of particulars, under a Judge's order, which he had 
 at the return of the summons, unless otherwise provided for in such order. 
 
 A special indorsement does not bind the plaintiff after delivery of his statement 
 of claim, and will not operate as particulars of his claim. Particulars may therefore 
 be ordered although the indorsement is sufficiently specific, Huggins v, Guelph 
 Barrel Co., 8 Pr. R. 170. 
 
 The rule which formerly existed, not to compel a plaintiff to state the items of 
 smuB for which he has voluntarily given credit to the defendant in his particulars 
 of demand is, since the .Judicature Act, no longer applicable, and the defendant 
 cui require the plaintiff to state such items, unless they are such as may be more 
 within the knowledge of the defendant than of the plaintiff ; therefore, where, in wn 
 action on a builder's contract, the plaintiff, in his particulars, on a specially indorsed 
 writ, gave credit to the defendant for a Iimip suni " for work not performed," Mid 
 
 m ^ 
 
 iir i 
 
 5 
 
 CO 
 
,1 iMH 
 
 886 
 
 JUDICATURE ACT. 
 
 rM ' 
 
 i\ > 
 
 O. XTII . for another lump aum "for bricks, goods and work," the Court held that the defend- 
 B, 9, ant was entitled to have an account with dates and items as to these two lump sums, 
 
 Godden v. Corsten, 49 L. J. C. L. 112. 
 
 The administratrix of A, by statement of claim in an action against the admin- 
 istratrix of 6, alleged that an arrangement had been made between A and 6 that 
 sums contributed by them for the purpose of being lent to or applied for the benefit 
 of C, to enable him to carry on a litigation, should be treated as a joint transaction, 
 and that as soon as C had established his title to the property for which he was 
 suing, and could repav the advances made him, the advances made by A and G 
 should be paid out of the moneys recovered from him ; that, during the litigation, 
 A advanced, in pursuance of this arrangement, sums amounting to about £27,000 ; 
 that the advances made to C were made through G, and in his name ; that the 
 defendant had recovered a judgment against C for the advances to him, and that a 
 sum had been set apart in a suit in Chancery in satisfaction of this judgment. The 
 ])laintifif claimed that it might be declared that the loans by G, in respect of which 
 the judgment was recovered, were transactions for the joint benefit of A and G, as 
 ])artners, and to have the sums contributed b^ them rospecvively ascertained ; and 
 asked that the plaintiff might be declared entitled to a snare in the benefit of the 
 judgment and in the fund set aside to satisfy it. The defendant, before putting in a 
 defence, applied for an account, with dates and items of the particulars of the £27,000 
 mentioned in the statement of claim , and Pollock, B. , made an order accordingly :— 
 Held, on appeal, that the action not being a mere legal demand for an ascertained 
 sum, but an equitable claim for an amount to be ascertained by an account, the 
 particulars asked for were not required to enable the defendant to frame her defence, 
 and that the plaintiff ought not to be ordered to furnish them, Augustinus v. 
 Nerinckx, L. B. 16 Ch. D. 13. See cases as to Particulars in Kobinson & Joseph's 
 Digest. 
 
 ORDER XVIII. 
 
 Defence. 
 
 •. XTIII. 
 
 11.1. 
 
 I ^ III 
 
 160. 
 
 1 VHiere a statement of claim is delivered to a defendant 
 he shall deliver his defence within 8 days from the de- 
 livery of the statement of claim, or from the time limited for 
 appearance, whichever shall be last, unless such time is extended 
 by the Court or a Judge. 
 
 See Eng. R. Sup. C, O. XXII., r. 1 ; R. S. O., c. 50, ss. 100, 101 ; c. 51, s. 3 ; 
 G. O. Chy., Nos. 88, 89, 408, 620; Eng. C. L. F. Act of 185,''., s. 63. 
 
 " i)eKi;er."— Delivery includes filing ; O. XV., r. 26. 
 
 " Within 8 days." — As to computation of time, see O. LII. 
 
 "Time limited for appearance." —Under O. XVII., r. 1 (c), the plaintiff ma^ 
 deliver a statement of his claim at the time of service of the writ. If the writ is 
 served in Ontario, the time for appearance is 10 days, 0. II., r. 5; if out of Ontario, 
 it is as prescribed by O. VII., r. 2. 
 
 " Unless such tim€ is extended." — The Court or a judge has power to extend or 
 abridge the time; O. LII., r. 9. 
 
 By the Common Law Procedure Act, R. S. O., c. 60, ss. 100, 101, the time 
 for a defendant within the jurisdiction pleading in bar was eight days. In Chan- 
 cery a defendant had to answer or demur within one month after service of the bill. 
 Chancery Con. Gen. O. 88. 
 
 An application for further time to answer is not of course, but must be sup- 
 ported by affidavit, Brown v. Lee, 11 Beav. 162 : Byng v. Clark, 13 Beav. 92 ; 
 Yoric and Midland Railway Company v. Hudson, 13 Bear. 69. 
 
^^^^ 
 
 DEFENCE. 
 
 An application for further time to plead should be made before the time when 
 plaintiff would be entitled to sign judgment, Cumberledge v. Carter, ti M. & G. 748. | 
 But if the summons be retumaole before judgment signed, judgment signed while 
 the parties are attending the Judge would be irregular, Abernethy v. Faton, 6 Soott, 
 586 ; Glen v. Lewis, 8 Ex. 132. 
 
 If the time for defence ia extended generally, without limiting a shorter time 
 for demurring alone, the defendant may demur after the time allowed by O. 
 XXIV., r. 3, and if it is desired to limit the time for "demurring alone the 
 order should be so expressed, Hodges :'. Hodges, L. B. 2 Gh. D. 112 ; but see 
 Boultbee v. Cameron, 2 Gh. Gh. II. 41. If the plaintiff consents, in writing, to 
 grant a defendant an extension of time for the delivery of his defence, an order 
 for the purpose is unnecessary, Ambrose v. Evelyn, L. B. 11 Gh. D. 759 ', O. LII., 
 r. 5. 
 
 Where one of several defendants in an action has delivered his defence, and the 
 time for the plaintiff to deliver his reply to such defence has expired, but the 
 plaintiff has, without the knowledge of that defendant, agreed in writing with the 
 other defendants to extend the time for delivering their defences, that defendant 
 cannot move to dismiss the action as against him for want of prosecution, the 
 pleadings not yet being closed within the meaning of O. XXI., and O. XXXI., 
 r. 2. A defendant's proper course under such circumstances is to write to the 
 plaintiff's solicitor, and inquire how the action stands as rega'rds the other defend- 
 ants, Ambrose v, Evelyn, L. K. 11 Gh. D. 759. 
 
 161. 
 
 2. A defendant, who has appeared in an action and stated 
 that he does not require the delivery of a statement of claim 
 and to whom a statement of claim is not delivered, may deliver, 
 a defence at any time within 8 days after his appearance, 
 unless such time is extended by the Court or a Judge. 
 
 See Eng. R. Sup. G., O. XXII., r. 2. 
 
 "Stored."— The statement is made at the foot of the appearance. See Forms 
 No. 77, 78, 80. 
 
 *' Within 8 days,"— As to computation of time, see Order LII. 
 
 " Unless such time is extended." — See notes to preceding rule. 
 
 " Court or a Judge." See notes to preceding rule. 
 
 162. 
 
 3. Where leave has been given to a defendant to' defend 
 under Order 10, Rule 1, he shall deliver his defence, if any, 
 within such time as shall be limited by the order giving him 
 leave to defend, or if no time is thereby limited, then within 
 8 days after the order. 
 
 See Eng. R. Sup. G., O. XXII., r, 3. 
 
 "iteKm-."— Delivery includes filing, O. XV., r. 26. 
 
 " Within 8 days." — As to computation of time, see O. LII. 
 
 163. 
 
 4. Where the Court or a Judge shall be of opinion that any 
 allegations of fact denied or not admitted by either or any 
 party ought to have been admitted, the Court may make such 
 
 2S7 
 
 O. XVIII. 
 B. I. 
 
 
 ■; 
 
 I 
 
( I 
 
 238 
 
 JUDICATURE ACT. 
 
 XVIII. 
 
 .4. 
 
 &f 1 
 
 order as shall be just with respect to any extra costs occasioned 
 by their having been denied or not aumitted. 
 
 This is an extension of the practice in Chancery on references under deorees. 
 Where it becomes necessary to adduce evidence, or to incur expenses otherwise, in 
 establishing or proving items of account, or other matters which in the judgment 
 of the Master ought, under all the circumstances, to have been admitted by the 
 party sought to be charged therewith ; and which the party has refused to admit ; the 
 Master before making his report is to proceed to tax such costs, occasioned by 
 such refusal, as shall appear to him reasonable and just, and shall state in his 
 report the amount of such costs, and how the same were occasioned, Chancery Con. 
 Gen. Ord. 234. 
 
 As to costs occasioned by a party neglecting or refusing to admit documents at 
 Common Law, see Harrison's C. L. P. A. 277 ; and in Chancery, G. O. Chy. No. 
 156. 
 
 164. 
 
 5. Where a defendant by his defence sets up any counter- 
 claim which raises questions between himself and the plaintiff 
 along with any other person or persons, he shall add to the 
 title of his defence a further title similar to the title in a state- 
 ment of claim, setting forth the names of all the persons who, 
 if such counter-claim were to be enforced bv cross action, would 
 be defendants to such cross action, and shall deliver his defence 
 to such of them as are parties to the action within the period 
 within which he is required to deliver it to the plaintiff. 
 
 See Eng. R. Sup. C, 0. XXII., r. 5. 
 
 '• Counter-claim." — See notes to sec. 16, sub-s. 4. 
 
 In Form No. 67, the style of cause in a counter-claim where no third person is 
 brought in as a defendant to it, is given thus : — 
 
 Between, A. B., Plaintiff, 
 and 
 C. D., Defendant, 
 (By original action). 
 
 and Between, C. D., Plaintiff, 
 and 
 A. B., Defendant, 
 (By Counter-claim). 
 
 Where no " other person " is brr^-aght in by the counter-claim, it was said by 
 Quain, J., in Williams v. Wright, W. N. (1875) 232, to be utterly wrong to add a 
 further title, ' ' The new procedure recognizes the party setting up a counter-claim 
 in no other light then as a defendant. The heading of uie Liverpool firm is simply 
 absurd.'' 
 
 " To such of them as are parties." — There may be a counter-claim as against co- 
 defendants, McLay v. Sharp, W. N. (1877) 216 ; Bagot v. Easton, L. R. 11 Ch. D. 
 392 ; Butler v. Butler, 49 L. J. N. S. Chy. 742. 
 
 (■■■■t- 
 
 166. 
 
 6. Where any such person as in the last preceding Rule men- 
 tioned is not a party to the action, he shall be summoned to 
 appear by being served with a copy of the defence, and such 
 service shall be regulated by the same rules as are hereinbefore 
 
?! 
 
 DEFENCE. 
 
 239 
 
 contained with respect to the service of a writ of summons, and •• ^'^w* 
 every defence so served shall be indorsed in the Form No. 19 in "* ** 
 Appendix (B) hereto, or to the like effect. 
 
 See Eng. B. Sup. C, O. XXII., r. 6. 
 
 " The tame rules."— See 0. VI. and notes. 
 
 '*F<yrm No. 19."— The time limited in the form for appearance is eight days. 
 The time limited for apiiearance to a writ is ten days, when served within Ontario, 
 O. II., r. 6, and various longer periods when served out of the jurisdiction, O. 
 VII., r. 2. 
 
 166. 
 
 7. Any person not a defendant to the action, who is served 
 with a defence and counter-claim as aforesaid, must appear 
 thereto as if he had been served with a writ of summons to 
 appear in an action. 
 
 " See Eng. R. Sup. C, 0. XXII, r. 7. 
 
 This rule does not refer to the time for appearance, for the times limited are 
 different. See note to preceding rule. 
 
 As to mode of appearance, see Order VIII. 
 
 167. 
 
 8. Any person named in a defence as a party to a counter- 
 claim thereby made may deliver a reply within the time within 
 which he might deliver a defence if it were a statement of 
 claim. 
 
 See Eng. R. Sup. C, 0. XXII., r. 8. 
 " Counter-claim."— See notes to sec. 16, sub-s. 4. 
 "Z)eKi«r."— Delivery includes filing, O. XV., r. 26. 
 " Within the time."— See O. XVIII., r. I. 
 
 168. 
 
 9. Where a defendant by his statement of defence sets up a 
 counter-claim, if the plaintiff, or any other person named in 
 manner aforesaid as party to such counter-claim, contends that 
 the claim thereby raised ought not to be disposed of by way of 
 counter-claim, but in an independent action, he may at any 
 time within 3 weeks from the delivery of such statement 
 of defence, apply to the Court or a Judge for an order that 
 such counter-claim may be excluded; and the Court or a Judge 
 may, on the hearing of such application, make such order as 
 shall be just. 
 
 See Eng. R. Sup. C, 0. XXII., r. 9. 
 
 " Counter-claim." — See notes to sec. 16, sub-s. 4. 
 
 '"An independent action."— Under O. XV.^ r. 3 (6), ' ' the Court or a Judge " may 
 on the application of the plaintiff before trial, if in the opinion of the Court or 
 
 r 
 a 
 
 It 
 
U ft 
 
 240 JUDICATURE ACT. 
 
 ®* XVI II. Judge Buch set-ofif or counter-claim cannot be conveniently diaposed of in the- 
 K. V. iienuin^ action, or ought not to be allowed, refuse permission to the defendant to 
 
 avail himself thereof. 
 
 For the cases shewing the discretion which has been exercised under this Order, 
 see notes to sec. 16, sub-s. 4. 
 
 169. 
 
 10. Where in any action a set-off or counter-claim is estab- 
 lished as a defence against the plaintiffs claim, the Court may, 
 if the balance is in favour of the defendant, give judgment for 
 the defendant for such balance, or may otherwise adjudge to 
 the defendant such relief as he may be entitled to upon the 
 merits of the case. 
 
 See Eng. R. Sup. C, 0. XXII., r. 10. 
 
 The "balance in favour of the defendant " in case a set-o£F or counter-claim is 
 established against the claim, is the balance upon the hearing of the action, Rolfe 
 r. Maclaren, L. R. 3 Ch. D. 106 ; no order can be made on a counter-claim before the 
 principal claim of the plaintiff is dealt with, lb. 
 
 As to costs in such cases, see notes to sec. 16, sub-s. 4. 
 
 ORDER XIX. 
 Discontinuance. 
 
 O. XIX. 
 B. I. 
 
 Rill 
 
 n - 
 
 170. 
 
 1. The plaintiff may, at any time before receipt of the defen- 
 dant's statement of defence, or after the receipt thereof before 
 taking any other proceeding in the action (save any inter- 
 locutory application), by notice in writing, filed and served, 
 wholly discontinue his action or withdraw any part or parts of 
 his alleged cause of complaint ; and thereupon he shall pay 
 the defendant's costs of the action, or if the action be not 
 wholly discontinued, the defendant's costs occasioned by the 
 matter so withdrawn. 
 
 IlS^ect of Discontinuance. — A plaintiff who had given an undertaking as to 
 damages discontinued his action :— Held, that the Court would, nevertheless, direct 
 a reference as to damages, Newcomen v. Coulson, L. R. 7 Ch. D. 764. 
 
 Test action, — Where an action which had been a test action (for the purpose of 
 deciding the rights of the plaintiffs in a number of similar actions against the same 
 defendants) came on for trial, the plaintiff declined to proceed, on the ground that 
 he was not in a fit state of health to attend and be examined as a witness. On a 
 previous occasion he had moved for and obtained a postponement of the trial, on 
 the ground of his ill health. A week before the trial, an application by the plain- 
 tiff, in Chambers, to stay all proceedings in the action had been refused by Malins, 
 V. C, on the ground that the plaintiff was not dominus ?,is, but a trustee for the 
 plaintiffs in the other actions. At the trial the plaintiff ujked for a postponement 
 or that an order of discontinuance might be maae under rules of Court (1875) O. 
 XXIII. : — Held, that the Court could not regard the rights of the plaintiffs in the 
 

 DISCONTINUANCE. 
 
 241 
 
 other actions, but must act as if the plaintiff had not appeared at the trial, and •• *>^ 
 must dismiss the action with costs, Koninson v. Chadwicli, L. K. 7 Ch. D. 878. B. It 
 
 Notice pendino appeal.— A plaintiff gave notice of appeal from the refusal of an 
 injunction ; shortly afterwards the plaintiff's solicitors wrote to the defendant's 
 solicitors to withdraw the notice of appeal. Two da>|8 after this the plaintiff's 
 solicitors gave the defendant's solicitors notice of discontinuance < ' tvction. The de- 
 fendant's solicitors declined to consent to the withdrawal of Mi ■ appeal except on 
 terms to which the plaintiff's solicitors did not a^ree, and the appeal came on in its 
 turn :— Held, that the discontinuance of the action put an end to the appeal, and 
 that no order could be made except to strike it out of Cio paper, Conybp;i.e v. 
 Lewis, L. R. 13 Ch. D. 469. 
 
 Counter-ch'im. — A counter-claim does not interfeio with the ] tainliff's right to 
 discontiuuH, ^ avasseur v. Krupp, W. N. (1880) 11. 
 
 Forms, — A form of notice of discontinuance is given amoug the Forms, see No. 
 
 2v. 
 
 For form of judgment after discontinuance, see Forms, No. ICi. A form of 
 fieri facias is given in Bolton v. Bolton, L. R. 3 Ch. D. 276. It appears to 'i-vve 
 been devised upon the assumption that no judgment was to be entered for tlie 
 costs, and is based directly upon the notice of discontinuance. It is quite true, 
 as said by counsel, that the rules contain no provision for signing judgment for 
 costs, and that they do provide that "thereupon he (the plaintiff) shall pay the 
 defendant's coats of the action," but the form of judgment is given in the Appendix 
 D. 13, similar to the form in the appendix to the Ontario Rules, No. 164. This 
 fact appears to have been overlooked, and probably destroys the value of the case ' 
 as an authority for such an extraordinary writ. 
 
 Costs.— A bill had been filed but not served and was subsequently dismissed with 
 costs by the plaintiff. It appeared that, though no answer had been drawn, the 
 defendant's solicitor hod received instructions to defend some two months before 
 the disniiHsal of the bill : — Held, that the defendant was entitled to tax instructions 
 and the costs of taxation, Bissett v. Strachan, 8 P. R. 211. 
 
 (a) Such costs shall be taxed, and such discontinuance or 
 withdrawal, as the case may be, shall not be a defence to any 
 subsequent action. 
 
 Eng. R. Sup. XXIII., r. 1. 
 
 Discontinuance. — Statement of practice as to taxation of costs of an abandoned 
 motion, or on discontinuance of action, Harrison v. Leutner, L. R. 16 Ch. D. 559. 
 
 Hitherto in Chancery a plaintiff could at any time before the hearing of the 
 cause obtain an order upon prcecipe dismissing his bill with costs, to be paicTby him 
 to the defendant. But if such an order was taken out after the cause had been set 
 down for hearing, it was equivalent to a dismissal upon the merits, G. O. Chy., 
 No. 184. After a cause had been heard, however, and was standing for judgment, 
 plaintiff could not dismiss his bill on prcecipe, Smith v. Port Hope Harbour Com* 
 pany, 6 U. C. L, J. 189. 
 
 At Common Law, Reg. Gen. T. T. (1856) No. 24, was as follows :— "To entitle 
 a plaintiff to discontinue after plea pleaded, it shall not be necessary to obtain the 
 defendant's consent, but the rule shall contain an undertaking on the part of the 
 plaintiff to pay costs, and a consent that if they are not paid within four days after 
 taxation the defendant shall be at liberty to sign judgment of non pros. 
 
 "Filed and served." — These words are not in the corresponding English rule. 
 Under the English Act a letter was held a sufficient notice, The Pommerania, L. R. 
 4P. D. 195. 
 
 "Part or parts." — A plaintiff under tt 'ormer practice could not at Common 
 Law discontinue part of an action, Benton t. Polkingham, 6 M. & W. 8. 
 
 (b) Save as in this Order otherwise provided, it shall not be 
 icompetent for the plaintiff to withdraw the Record or discon- 
 
 16 
 
242 
 
 JUDICATURE ACT. 
 
 O. XIX. 
 B. 1. 
 
 m 
 
 tinue the action without leave of che Court or a Judge, but the 
 Court or a Judge may, before, or at or after the hearing or 
 trial, upon such terms as to costs, and as to any other action, 
 and otherwise, as may seem fit, order the action to be discon- 
 tinued, or any part of the alleged cause of complaint to be 
 struck out. 
 
 See Eng. R. Sup. C, O. XXIII. , r. 1. 
 
 In Chancery there was nothing eqnivalcnt to the withdrawal of the record, and 
 notice of hearing having been once given there was no power to countermand it. At 
 Common Law, on the other hand, notice of trial could, up to within four days of the 
 trial, be countermanded with impunity, and the withdrawal of the record at any 
 time prior to the trial subpected the plaintiff to payment of the costs of the day 
 only. The Chancery practice in these respects has been adopted, for the with- 
 drawal by leave of a Judge is equivalent to a postponement of the trial. 
 
 There is no limit placed by these rules ui)on the right of the plaintiff to with- 
 draw a juror. But as the effect of so doing is to put an end to tne action and de- 
 termine the whole cause of suit (Flake v. Clapp, 8 Pr. B. 62), defendants cannot 
 be injured by the omission. 
 
 And see cases in notes to O. XXXI., r. 19. 
 
 " Court or a Jvdge."See notes to O. IV., r. 1 (a). 
 
 " Suck terms as to costs." — A plaintiff has been allowed to dismiss his bill without 
 costs under the following circumstances :— (1) If the bill was filed under a mistake 
 common to both parties, Broughton v. Lashmei , 5 M. & C. 136 ; and see Hansard 
 V. Hardy, 18 Yes. 460. (2) If Che defendant has g?ven the relief sought by the suit, 
 Wilde V. Wilde, 10 W. B. 368, 503 ; or if the bill has become unnecessary, but ivas 
 originally justified by the defendant's misconduct or fraud, Elsey v. Adams, 2 D. 
 J. & S. 147 ; Knox v. Brown, 2 Bro. C. C. 186 ; Goodday v. Sleigh, 3 W. R. 87 ; 
 but see Ventilation and Sanitary Improvement Compan]^ v. Ecleaten, 11 W. R. 
 613. (3) Where the plaintiff has been misled by a suggestion of the Court, Lister 
 v. Leather, 1 D. & J. 361. 
 
 One of the defendant's to an action for the recovery of land was allowed to with- 
 draw his defence, after the action had been on the paper for trial, but had been 
 postponed till another action relating to the same property should be ready f«r 
 trial, upon the terms of giving the plaintiffs all the relief to which they could be 
 entitled at the trial, and paying the costs occasioned by the defence, and the costs 
 of a summon'!! for leave to withdraw. Real and Personal Advance Co. v. McCarthy, 
 L. R. 14 Ch. D. 188. 
 
 (c) The Court or a Judge may, in like manner, and with 
 the like discretion as to terms, upon the application of a 
 defendant, order the whole or any part of his alleged grounds 
 of defence or counter-claim to be withdrawn or struck out, but 
 it shall not be coiiipetent to a defendant to withdraw his de- 
 fence, or any part thereof, without such leave. 
 
 See Eng. R. Sup. C, O. 23, r. 1. 
 
 " Court or Judge."— See notes to O. IV., r. 1. 
 
 Some of several defendants to an action for recovery of land, after the action 
 had been in the paper for trial, having quitted the part of the premises they occu- 
 pied, were allowed to withdraw their statement of defence on terms of paying into 
 Court mesne profits, and paying the costs occasioned by their statement of defence, 
 and the costs of the summons for leave to withdraw. The Real and Personal 
 Advance Co. v. McCarthy, 49 L. J. Ch. 615. 
 
i t /N 
 
 J 'il 
 
 REPLY, ETC. 
 
 243 
 
 171. 
 
 2. Where a cause has beeu entered for trial, it may be with- •• *'^' 
 drawn by either plaintiff or defendant, upon producing to the "* ** 
 proper officer a consent'in writing, signed by the parties. 
 
 See Eng. B. Sup. C, Dec. 1875, r. 9. 
 
 17!3. 
 
 3. A defendant may sign judgment for the costs of an action 
 if it is wholly discontinued, or for the costs occasioned by the 
 matter withdrawn, if the action be not wholly discontinued. 
 
 See Eng. B. Sup. C, June 1876, B. 10 ; Beg. Gen. T. T. (1856) No. 24 (Ont). 
 
 See notes to rule 1 (a) of this order. 
 
 For form of judgment, see Forms, No. 164. 
 
 ORDER XX. 
 
 Reply and Subsequent Pleadings. 
 
 173. 
 
 
 1. A plaintiff shall deliver his reply, if any, within _ 
 weeks after the defence or the last of the defences shall have 
 been delivered, unless the time shall be extended bv the Court 
 or a Judge. 
 
 See Eng. B. Sup. C, O. XXIV., r. 1 
 
 ** A plaintiff ." — By O. XVIIL, r. 8, any person named in a defence as a party 
 to a counter-claim thereby made, may deliver a reply within the time within which 
 he might deliver a defence if it were a statement of claim. But such reply must 
 not contain a counter-claim against the defendant, Street v. Gover, L. B. 2 Q. B. 
 D. 498. 
 
 "Deliver," — Delivery inclades filing, O. XV., r. 26. 
 
 '*Beply." — A>plaintifi is entitled to reply by traverse, confession or avoidance 
 or both, Hall v. Eve, L. B. 4 Ch. D. 341. The reply under the new practice is 
 equivalent to the reply under the former Common Law practice and matters of 
 reply which would formerly have been raised by amendment of the bill in Chancery 
 are now to be pleaded in the rep"''ation, lb.; £arp v. Henderson, L. B. 3 Ch. 
 D. 254. All the other matters formerly raised at law by a new assignment 
 must now be introduced into the original statement by way of amendment, lb. 
 
 A reply must not refer to an independent document, such as plaintiff's answer 
 to interrogatories, as contaiaing fact;^ on which the pleader relies, without setting 
 out such document itself as part of the reply, Williamson v. London and North- 
 western Bailway Co., L. B. 12 Ch. D. 787 ; a reply must not set up new claims ; it 
 must not plead mere evidence, or argument, or state conclusions of law to be 
 drawn or inferred from the facts pleaded, lb. It is competent for a plaintiff to 
 introduce new matter by way of set-off, or by way of controvertinR the statements 
 of the defence, provided that he do so within a reasonable comoass and in a reason- 
 able manner, lb. 
 
 "Ijost of the defences."— The expression "last of several answers," in G. O. 
 Chy. No. 81, under which the plaintiff could obtain an order of course to amend 
 
 3 o. XX. 
 
 
 i I 
 
;i 
 
 :l; 
 
 m 
 
 »?■: 
 U' 
 
 
 F vj r, 
 
 
 I ifi! 
 
 244 
 
 o. 
 
 B. 1. 
 
 m 
 
 
 
 O. XXI. 
 B.I. 
 
 JUDICATURE ACT. 
 
 within a certain time after the last answer was filed, was construed to mean 
 " the last answer " required to be put in, Dalton v. Hayter, 7 Beav. 586 ; Lester v. 
 Archdale, 9 Beav. 156 ; Duncombe v. Lewis, 10 Beav. 273 ; Stinson v. Taylor, 4 Ha. 
 608 ; and not the last answer filed at the time of applying for the order, Arnold v. 
 Arnold, 9 Beav. 206 ; CoUett v. Preston, 3 Mac. & G. 42i; whereas, in G. O. Chy. 
 No. 273, relating to motions to dismiss, the expression " last of the answers " meant 
 the last answer of the particular defendant moving to dismiss, Dalton v. Hayter, 7 
 Beav. 586 ; Lester v. Archdale, 9 Beav. 156 ; Sprye v. Reynell. 10 Beav. 351. 
 
 Forms. — Forms of reply are given in the appendix, see Forms, Nos. 47, 52, 63» 
 66, 70. See as to forms of reply said to be erroneous, and in which the facts stated 
 should have been introduced by amendment, into the statement of claim, Earp v. 
 Henderson, L. R. 3 Ch. D. 261 ; Hall v. Eve, L. R. 4 Oh. D. 341. 
 
 174. 
 
 2. No pleading, subsequent to reply, other than a joinder of 
 issue shall be pleaded without leave of the Court or a Judge, 
 and then upon such terms as the Court or Judge shall think 
 fit. 
 
 See Eng. R. Sup. C, O. XXIV., r. 2. 
 
 "Joinder of issue."— In Common Law pleading, when the pleadings in an 
 action reach such a stage that either party traverses or denies the facts pleaded 
 by his antagonist, and the latter, instead of seeking to avoid their effect, or pleading 
 any new matter to rebut them, simply accepts the issue thus tendered, this is called 
 joinder of issue or joining issue, Abbott's Law Dictionary. 
 
 *' Court or a Judge," — See notes to O. IV., r. 1 (o). 
 
 175. 
 
 3. Subject to the last preceding Rule, every pleading subse- 
 quent to reply shall be delivered within 4 days after the 
 delivery of the previous pleading, unless the time shall be 
 extended by the Court or a Judge. 
 
 See Eng. R. Sup. C, O. XXIV. , r. 3. 
 
 "X>eKi;ererf."— Delivery includes filing, O. XV., r. 26. 
 
 " Within 4 days."— Aa to computation of time, see O. LII. 
 
 " Unless the time shall be extended."— See 0. LII., r. 8. 
 
 " Court or a Judge." — See notes to O. IV., r. 1 (a). « 
 
 ORDER XXI. 
 Close of Pleadings. 
 
 176 
 
 As soon as either party has joined issue upon any pleading 
 of the opposite party simply, without adding any further or 
 other pleading thereto, or as soon as the time for amending 
 
I ^ 
 
 ISSUES. 
 
 245 
 
 mn 
 
 the pleadings under these Rules or under any order made in •• **■• 
 the action or for delivering a reply or subsequent pleading or "* '* 
 demurrer, has expired, the pleadings as between such parties 
 shall be deemed to be closed without any joinder of issue being 
 pleaded by any or either party. 
 
 See Eng, R. Sup. C, O. XXV.; O. XXIX., r. 12; R. S. O., c. 50, s. 117. 
 
 " Joined mue."— See O. XX. r. is. 
 
 ^' Time far amending." — See 0. XXIII. 
 
 " Subsequent pleading or demurrer." — These words are not in the Enjflish rule 
 and are not very clear. The word pleading includes demurrer. Is a subsequent 
 demurrer meant? It could hardly have been intended that the rule should only 
 apply in cases where the demurrer had, in the previous history of the action, been 
 filed. If not a subsequent demurrer then it must mean after the time for delivering 
 a demurrer has expired. This is the same time as for deliveiing a defence, O. 
 XXIV., r. 3. If then no defence has been put in, and the time for demurrer has 
 elapsed, are the pleadings closed ? 
 
 *' Without any joinder of issue being pleaded." — This is another example of the 
 danger of piecing new ideas on to old. The English rule reads thus : As soon aa 
 either party has joined issue upon any pleading of the opposite party, simply with- 
 out adding any further or other pleading thereto, the pleadings as between such 
 parties shall be deemed to be closed, and is intelligible ; the present rule in effect . 
 says that " as soon as either party has joined issue . . . the pleadings . . . shall 
 be deemed to be closed without any joinder of issue being pleaded." 
 
 ORDER XXII. 
 
 Issues. 
 
 177. 
 
 Where in any action it appears to a Judge that the statement o. xxii. 
 of claim or defence or reply does not sufficiently define the *• *• 
 issues of fact in dispute between the parties, he may direct 
 the parties tQ prepare issues, and such issues shall, if the parties 
 differ, be settled by the Judge. 
 
 See Eng. fi. Sup. C, O. XXVI. 
 
 "A Judge."— For definition of this word, see O. LXI. 
 
 In England the application is made in Chambers. Can it be so made in Ontario 
 See notes to 0. IV., r. 1 (a). 
 
 Separate issues will not be allowed to be tried unless they will be decisive of the 
 action, Republic of Bolivia v. Bolivian Co., 24 W. R. 361. 
 
pi 
 
 '■1 
 
 
 
 
 246 
 
 O. XXIII. 
 B.1. 
 
 I 
 
 JUDICATURE ACT. 
 
 ORDER XXIII. 
 Amendment of Pleadings. 
 
 178. 
 
 1. The Court or a Judge may, at any stage of the proceed- 
 ings, allow either party to alter his statement of claim or 
 defence or reply; or may order to be struck out or amended 
 any matter in such statements respectively which may be scan- 
 dalous, or which may tend to prejudice, embarrass, or delay 
 the fair trial of the action. All such amendments shall be 
 made as may be necessary for the purpose of determining the 
 real questions or question in controversy between the parties. 
 
 See Eng. R. Sup. C, 0. XXVII., r. 1 ; R. S. O., c. 49, as. 5, 8 ; c. 50, ss. 120, 
 270. 
 
 Amendments under this rule may divided into two classes : (1) amendments by 
 parties of their own pleadings, and (2) compulsory amendments of the pleadings of 
 the opposite party. As to amendments by striking out or adding parties, see O. 
 XII., rr. 2. 15. 
 
 1. Amendments by parties of their own pleadings. — Amendments may be made 
 without leave in the cases provided for by rules 2-6 of this Order, and rule 7 pro- 
 vides for cases in which leave has first to he obtained. Some of the cases in which 
 applications wer6 made for leave are here noted. The valuable labours of Messrs. 
 Rolinson & Joseph have rendered it unnecessary to attempt an exhaustive analysis. 
 
 At what time amendments allowed. — "The Court or a Judge may, at any stage of 
 the proceedings, allow either party to alter his statement of claim or defence or reply," 
 O. XXIII., r. 1. 
 
 Application for leave to amend any pleading may be made by either party to 
 the Court or a Judge in Chanbers, or to the Judge at the trial «tf the action, O. 
 XXIII., r. 7. 
 
 Unde- the old practice leave to amend at the trial would not be given unless the 
 amendment related to the issues already raised, Lord Darnley v. L. C. and D. Ry., 
 1 D. J. & S., 204, 215; Gossip v. Wright, 11 W. R. 632; or the position of the 
 parties had been changed since bill filed, Atty.-Gen. v. Cambridge, L. R. 6 Eq. 282. 
 
 In Woodstock v. Niagara, 1 Ch. Ch. R. 166, an application for leave to withdraw 
 replication and amend the bill by adding parties, where the cause had been set 
 down for examination, and where the amendment would postpone examination till 
 the following term, was refused with costs, the plaintiff having been guilty of laches 
 in making the application. 
 
 An amendment of a bill after replication, and long after bill filed, for the pur- 
 pose of stating a case of gross fraud, will not be allowed unless it appears on the 
 clearest evidence that the plaintiff or his solicitor did not know, and could not with 
 reasonable diligence have discovered, before filing the bill, the facts upon which the 
 charge of fraud is grounded, Kerr v. Finlayson, 3 Ch. Ch. R. 497. 
 
 Under t^e Judicature Act leave was given to amend at the hearing of the suit 
 on motion for decree so as to raise an entirely new case. Budding v. Murdoch, L. 
 R. 1 Ch. D. 42 : Roe v. Davis, L. R. 2 Ch. D. 729 ; but see MoGillivray v. Mo- 
 Conkey, 6 Pr. R. 56. 
 
 A plaintiff charged the defendants with wilful neglect and default, but did not 
 allege any particular act of default. Issue having been joined in the suit before 
 the 2nd of November, 1876, upon the cause coming on for hearing after that date, 
 leave was given to the plaintiff, on his application, to amend the bill by charging 
 Bome one or more acts of default, but on the terms that he should enter into no 
 new evidence, and should pay the costs of the present hearing. King v. Corke, L. 
 
AMENDMENT OF PLEADINGS. 
 
 247 
 
 R. 1 Ch. D. 57; see also Roe I'. Davies, L. R. 2 Ch. D. 729; Mozley v. Cowie, 38L. «• XXIII. 
 T. N. S. 908 ; Kino v. Rudkin, L. R. 6 Ch. D. 160. Even after the verdict, where B. 1. 
 necessary to give effect to the finding of a jury an amendment may be allowed, 
 Noad V, Murrow, 40 L. T. N. S. 100, 3. Where there is a variance between the 
 declaration and proof, the proper time to apply to amend the declaration is at the 
 conclusion of the plaintiff's case. In Rainy v. Bravo, L. R. 4 P. C. 287, Sir Mon- 
 t»gu Smiih said : — "The appellant, according to the proper rule of practice, ought, 
 in their Lordships' opinion, to have applied for the amendment at the end of his 
 case. At the end of his case it must nave been apparent that there was a variance 
 between the evidence of the witnesses and the statement of the libel in the declara- 
 tion, and then, before the Judge had pronounced his decision or had begun to con- 
 sider hia decision, was the proper time for the appellant to have applied to him for 
 an amendment of the declaration. That, however, the appellant did not do, but 
 took his chance of a decision on the materials which were then before the Judge. 
 However, when the Judge, after having taken time to consider, was delivering his 
 judgment and giving his reasons for it, the appellant then, perceiving that the 
 judgment was to be against him, applied, for the first time, to the learned Judge to 
 make the amendment. Their Lordships do not say that it was too late for the 
 learned Judge to have exercised the power of amendment, if he had thought tit to 
 do so ; but it was a matter entirely within the discretion of the Judge at the trial, 
 whether at so late a period he would make the amendment or not, and the Chief 
 Justice on this occasion declined to make it, but offered the appellant the choice of 
 a Bon-suit. The question really conies to this, whether the tribunal should now 
 interfere with the discretion so exercised by the learned Judge in refusing to make 
 the amendment. Their Lordships would be at all times most reluctant to interfere 
 with the discretion of the learned Judge, in a case of this kind, when he has exer- 
 cised it upon a full apprehension of all the circumstances before him. " 
 
 What amendments will be allowed. — Leave will be given only in the interests of 
 justice, and not for the purpose of raising technical points. In Collette v. Goode, 
 L. K. 7 Ch. D., at p. 847, Fry, J., said :— " But I do not think I ought to allow an 
 amendment for the mere purpose of enabling the defendant to raise a purely tech- 
 nical objection to the plaintiff's title'to sue, an objection whi»,h the defendant never 
 intended to raise, but of which he now adroitly seeks to avail himself;" see also 
 Noad V. Murrow, 40 L. T. N. S. 100; Corby v. Cotton, 3 U. C. L. J. 50; MoKenzie 
 V. Van Sickles, 17 U. C. R. 226; Mozley v. Cowie, 26 W. R. 8.54; Ashley v. Taylor, 
 27 W. R. 228. 
 
 By not sufficiently denying an allegation, under the English practice, the defend- 
 ant was held to have admitted it. Leave to amend by inserting a denial was at first 
 refused, Tildesley r. Harper, L. R. 7 Ch. D. 403, but on appeal allowed, S. C. ; L. R. 10 
 Ch. D. 393. In that case Bramwell, L. J. , said : — " My practice has always been to give 
 leave tr amend, unless I have been satisfied that the party applying was acting mala 
 fide, or that, by his blunder, he had done some injury to his opponent, which could not 
 be compensated for by costs or otherwise. I confess that if the present case had 
 come before me I should have had some doubt whether the defendant had made a 
 bona fide mistake, as the mistake is so very obvious. I should probaVily have required 
 some affidavit or statement by the solicitor to shew that the slip in the pleading 
 was a bona fide one, and if satisfied on that point I should not have refused leave to 
 amend. Mr. Justice Fry seems to have thought it right to trust to his own strong 
 impression that the pleader could not have pleaded as he had done unless there had 
 been mala fides, rather than to the positive affidavit of the defendant, who had 
 sworn, before he kne>^that any objection could be taken to the pleading, that he 
 had not given any brine. It is quite right that the rules of the Court should be 
 observed, and that a party should be fined for his mistake, but the fine should be 
 measured by the loss to the other side, and not by the importance of the stake 
 between the parties." 
 
 Plaintiff having elected to occupy one of two positions, was not allowed to 
 amend so as to claim under the other, Cargill v. Bower, L. R. 10 Ch. D. 502. 
 
 An action may by amendment of the writ tiid statement of claim be turned into 
 an information and action without prejudice to a pending motion in the action, the 
 necessary sanction of the Attorney-General being obtained, Caldwell v. Pagham 
 Harbour Reclamation Copipany, L. R. 2 Ch. D. 221 ; see also Duke of Sutherland 
 V. TunstaU Board, 21 W. R. 244. 
 
 A defendant who has put in a joint defence will be allowed, under this rule, to 
 p>:i in a separate and amended statement, alleging new grounds of defence, without 
 
248 
 
 JUDICATURE ACT. 
 
 •I 
 
 ®* XXIII. any affidavit as to the nature of the new defence, but will be ordered to pay the 
 B. 1. costs rendered necesary by not having put in such a defence at an earlier period, 
 
 CargiU v. Bower, L. R. 4 Ch. D. 78. 
 
 An action was brought against three defendants, claiming damages in respect 
 of their alleged conspiracy and false representation. Before it came on for trial 
 one of the defendants died. Administration was taken out to his estate. Th« 
 plaintiff did not apply for an order of course to continue the proceedings against 
 the administrator, but obtained, in Chambers, an order giving him leave to amend 
 the writ and statement of claim, by adding the administrator as a defendant, and ly 
 making allegations that the estate of the intestate had been benefited by reason of 
 the matters complained of in the action. The administrator was served with notice 
 of the summons upon which this order was made, but did not appear on the hearing, 
 and the order was drawn up on the production ot an affidavit of service on him ; che 
 order, as drawn up, was dated as of a day prior to the date of the filing of the affi- 
 davit. The writ and statement of claim, having been amended, werererved on the 
 administrator, who entered a conditional appearance, and moved to ischarge the 
 order for irregularity :— Held, that the order had been regularly m .Je under 0. 
 XXIII. , r. 1, but that the order must bear date the day on which the affidavit was 
 filed, Ashley v. Taylor, L. R. 10 Ch. D. 768. 
 
 No amendment will be allowed, the effect of which will be to make the pleading 
 demurrable, Bank of Upper Canada v. Ruttan, 22 U. C. R. 451. 
 
 In a suit to set aside a settlement on the ground of fraud and surprise on the 
 plaintiff, leave was given to amend by alleging also the incapacity of the settlor, 
 Roe V. Davies, L. R. 2 Ch. D. 729. 
 
 A right obtained, subsequent to filing the bill, could not be introduced by ameid- 
 ment, Atty.-Gen. v. Corp. of Avon, 3 D. J. & S. 637 ; and see Peek v. Spencer, 5 
 Ch. App. 548. As to pleading matters arising, pending the action, see 0. XVL 
 
 Material for motion. — Prior to the Judicature Act, although the Court might 
 at any time, under proper circumstances, permit an amendment of the bill in 
 furtherance of justice, and upon such terms as it may think fit to impose, never- 
 theless, to obtain such indulgence, the plaintiff had to satisfv the Court by affidavit 
 of the cause of the delay, that due diligence had been used in the prosecution of 
 the suit, and of the truth of the amendments, Kerr v. Finlaysor., 3,Cn. Ch. R. 497 ; 
 see also McNab v. Gwynne, 1 Gr. 127 ; Jackson v. Robertson, 7 Pr. R. 148. 
 Where the plaintiff h \d been delayed by the defendant's not obeying in proper t'lrjo 
 an order to produce, leave was given, Archibald v. Hunter, 2 Ch. Cb, R, V ' ^A 
 where the plaintiff's solicitor absconded before the time to amenii tl l rr. of 
 course, had expired, and his departure was not known to the plainer'. ' .f;er- 
 wards, and due diligence appeared to have been used by the plaintiti f..' ■/caed 
 with the cause, after becoming acquainted with such departun?, the Court uteJ 
 leave to amend on payment of costs, Carney v, Bolton, 1 Gr. 423. 
 
 Under the new practice amendments have been more liberally allowed. In 
 Cargill V. Bower, L. R. 4 Ch. D. 80, Malins, V. C, said :— " The old practice has 
 been referred to, which put in the way of both the plaintiff and defendant so much 
 difficulty in amending the pleadings that it was always productive of great injustice. 
 In order to remove that difficulty the new rules have entirely altered the practice. 
 The case before me is one in which a gentleman, who is one of the defendants to a 
 suit, put in a joint defence, and since he put in that defence he has consulted an- 
 other solicitor, and the new solicitor says tnere ai'e omissions of several important 
 grounds of defence. Now it is clear that there may be omiftions made by a solici- 
 tor in putting in a defence which the client, who is ignorant of the law, may not 
 have been able to detect, and surely the mistake of a solicitor should not deprive 
 him of putting in a new defence when another solicitor has discovered the omissions 
 in the first defence within due time before the hearing of the action, I see no pos- 
 sible harm which can arise from allowing the amendment to be made." And in 
 Chesterfield Company v. Black, 25 W. R. 409, Bacon, V. C, said:— "I am not 
 competent to repeal the Judicature Acts, and if I were I should be unwilling to do 
 so. By the provisions of these Acts I am relieved from the necessity of inquiring 
 into the materiality of the proposed amendment. I think the enlarged power given 
 to the Court by the Judicature Acts is one of the most useful and beneficial which 
 has ever been conferred on the Court. ^ It is against justice that a man should not 
 be at liberty to bring his case forward in the way he thinks best, or that he should 
 be precluded from bringing before the Court those materials which he considers 
 necessary for the proper prosecution of his case. I do not think it was the inten- 
 
- p^ 
 
 AMENDMENT OF PLEADINGS. 
 
 249 
 
 I 
 
 tion of the Act that the old qualification should apply. In this case, until a recent O. JCXIII. 
 period, the plaintiffs did not know of certain documents affecting the subject h. 1. 
 matter of the action. These documents have been laid before counsel, and under 
 his advice application is made to the Court for leave to amend. Is not that a ground 
 on which the Court will exercise the discretion which it takes under the Act? 
 With the rest of the case I have nothing now tn do. I think the plaintiffs are 
 entitled to obtain leave to amend their statement of claim, but within a short 
 limited time, and this application must be at their own expense." 
 
 Terms of order allowing amendment. — In Cargill r. Bower. L. R. 4 Ch. D. 81, 
 which was an application by a defendant for leave to file a separate and amended 
 statement, Malins, V. C, said : — "Upon the question of costs, I think that the 
 defendant should indemnify the plaintiff against any reasonable costs which he has 
 rendered necessary in consequence of not having put forward his full defence at an 
 earlier period ; but as to the amount of costs, it has always been the habit of the 
 Court, when it sees that any undue expenses have been caused, to give such 
 directions as it may think fit with regard to costs, although it is true that, as a 
 general rule, the costs are left to the T \ing Master. In this case, I can see no 
 ground whatever for the plaintiff having instructed two Queen's counsel and a 
 junior upon such an application as this : I shall, therefore, direct that the costs of 
 one counsel only shall be allowed, and that may be either a senior or a junior brief, 
 as the plaintiff thinks fit. With regard to the costs of the other defendants who 
 have appeared, I think no objection should have been raised by them to such an 
 application as this ; at all events, a consent brief would have been sufficient ; I 
 shall, therefore, allow them 40s. only for costs." 
 
 When the hearing of an action is adjourned in order to allow parties to be added, 
 the party who applies for the adjournment must pay all the costs incurred by the 
 action having been in the paper for hearing, and not merely a fixed sum foi costs 
 of the day, Lydall v. Martinson, L. R. 5 Ch, D. 780 ; see also, Chesterfield Co. v. 
 Black, W. N. (1877) 65, and cases collected in Robinson & .Joseph's Digest. 
 
 Co9ti occasioned by amendment. — In McGillivray v. McConkey, 6 Pr. R. 58, 
 y.-C. Blake said : — " I think (1) that if a plaintiff amends his bill by striking out 
 portions, and altering it so that the answer put in is rendered useless, as a general 
 rule, the defendant should receive the costs of this portion of his defence rendered 
 useless by the act of the plaintiff ; but, (2) if the amendments are not of so wide a 
 scope as this, although so extensive as to contain new charges which m.ay occasion 
 another answer, I think that the plaintiff is not bound to have made such charges 
 in his original bill, and the defendant, if eventually ordered to pay costs, should 
 bear also such additional costs ; and (3) when a party is entitled to costs, it is not 
 proper to make the application for them in Chambers. It is proper to make it at 
 the hearing, when the Judge has the whole case before him. In nine cases out of 
 ten he can then better judge of the nature and propriety of the amendments, and 
 in the tenth case he can refer it to the Master to ascertain this, and to act upon his 
 finding on the taxation. 
 
 2. Compulsory amendment of the pleadings of the opposite party — Prolixity. — In 
 Davy V. Garrett, 38 L. T. N. S. p. 81, Baggallay, L. J., said :— "Prolixity of 
 pleading might be of two kinds : first, the prolixity might consist in necessary 
 facts being stated at undue length ; and secondly, it might consist in the statement 
 of unnecessary facts. The first kind of prolixity was not so objecti3nable, as it was 
 not calculated to embarrass the defendant, and it might be remedied by the Court, 
 under O. XIX., r. 2 (Ont. O. XV., r. 2), which empowers the Court to order the costs 
 occasioned by unnecessary prolixity to be borne by the party chargeable with the 
 same. The second kind of prolixity was more serious and might embarrass the 
 defendant by renderins; it difficult or impossible for him to know how to deal with 
 the unnecessary facts." And Thesiger, L. .T., said : — "Prolixity, standing by itself, 
 when carried to an extreme degree, would be a sufficient ground for striking out the 
 pleading, still more so when it was coupled with statements of evidence, and in the 
 present case the statements of facts were so mixed up with the statements of 
 evidence that it was impossible for the defendants to know what was the case they 
 had to meet. But the statement of claim was embarrassing on another 
 ground. Plaintiff's counsel ssid, at the bar, " that they intended to shape their 
 case in a triple alternative form." Alternative cases should not be mixed up 
 together, but should be classed under separate headings, and alternative claims to 
 refer should be clearly stated. S, C. ; L. R. 7 Ch, D. 473. 
 
 Embarrassing.— In Heugh v. Chamberlain, W. N. (1877) 128, the Master of the 
 Rolls is reported to have said that embarrassing meant "bringing forward a 
 
I i ' 
 
 'i ■ 
 
 
 n 
 
 till 
 
 H: 
 
 
 250 JUDICATURE ACT. 
 
 O. XXIIl. defence which the defendant was not entitled to make une of," but there are 
 B. 1. many caBes in which pleadings have been held to be embarrassing on account 
 
 only of the difficulty in ascertaining definitely what the pleading really meant. 
 The English reports are full of cases* in which applications have been made to 
 strike out pleadings as embarrassing. Under the English practice any allegation 
 in a pleading not denied is taken as admitted. It is, therefore, of the greatest con- 
 sequence closeljr to scrutinize the pleading and deny all that is material, and in the 
 case of indefinite statements embarrassment frequently arises. Under the On- 
 tario practice, however, O. XV., r. 24, the silence of a pleading as to any allega- 
 tion contained in the previous pleading of the opposite party is not to be construed 
 into an implied admission of the truth of such allegation. This was the rule which 
 formerly existed in the Court of Chancery, and in practice in that Court an appli- 
 cation to strike out a pleading as embarrassing was unknown. The power given, 
 however, by the present Act, to strike out a pleading upon that ground shews that 
 it may have been thought probable that under the new system embarrassment 
 might take place. Reference may, therefore, if necessary, be made to Heap v. 
 Slarris, L. R. 2 Q. B. D. 630 ; Askew v. North-Eastern Railway Company, W. N. 
 (1875) 238 ; Hope v. Banks, W. N. (1876) 38 ; Golding v. Wharton Rail and River 
 Salt Company, W. N. (1876) 40 ; Cashin v. Cradock, L. R. 3 Ch. D. 376 ; Blake v. 
 The AH lion Life Assurance Society, 35 L. T. N. S. 269; Berdan v. Greenwood, 
 L. R. 3 Ex. D. 251 ; Phillips v. Phillips, L. R. 4 Q. B. D. 127 ; Heugh v. Chamber- 
 lain, W. N. (1877) 128 • Turquand v. Fearon, 40 L. T. N. S. 543 ; Golding v. The 
 Wharton Salt Works Company, L. R. 1 Q. B. D. 374 ; Williamson v. The London 
 and North-Western Railway Company, L. R. 12 Ch. J). 787 ; Watson v. Rodwell, 
 L. R. 3 Ch. D. 380 ; and cases collected in Robinson & Joseph's Digest. 
 
 Order for amendment is discretionary and usuallp not appealahle, — See Golding v. 
 Wharton Salt Works Co., L. R. 1 Q. B, D. 374. But if the Judge of the Court 
 below has acted upon a wrong principle it is otherwise, Watson v. Rodwell, L. R. 
 3 Ch. D. 380 ; Davy v. Garrett, L. R. 7 Ch. D. 473. 
 
 Scandalous. — Under the former practice in Chancery a motion might be made 
 at any time, before or at the hearing, to have any pleading, petition or affidavit 
 taken off the file for scandal, or to have the scandalous matter expuirged, G. 0. Chy. 
 No. 70. Deprivation of the costs of the unnecessary matter was the only penalty for 
 impertinence or irrelevancy, G. O. Chy. Nos. 6, 71. It was said at one time that with- 
 out a special reference the taxing officer would not consider a question of| imperti- 
 nence, but in later years it has been his constant practice to do so without any 
 direction from the Court. Scandal consists in the allegation of anything which is 
 unbecoming the dignity of the Court to hear, or is contrary to good manners, or 
 which charges some person with a crime not necessary to be shewn in the cause ; to 
 « which may be added, that any unnecessary allegation bearing cruelly upon the 
 
 moral character of an individual is also scandalous, Daniell, Ch. Pr. (5 Ed.) 290. 
 
 If, however, the allegations are relevant to the issue, it is immaterial how scan- 
 dalous they may be, Daniell, (5 ed. ) 290. Matter which may be struck out must 
 therefore be both scpndalous and impertinent. If it be merely scandalous it is 
 unobjectionable, and if merely impertinent it will not be struck out but dis- 
 allowed upon taxation, see O. XV. , r. 2 (c, d) ; see, however, notes ante under 
 Embarrassing. 
 
 As to what is scandalous, see Christie v. Christie, L. R. 8 Ch. App. 499 ; Joddrell 
 V. Joddrell, 12 Beav. 216. Nothing is scandalous which is relevant to the merits, 
 Fenhoulet v. Passavant, 2 Ves. Sen. 24; Lord St. John v. Lady St. John, 11 Ves. 526 ; 
 Coffin V. Cooper, 6 Ves. 514 ; Everett v. Prythergch, 12 Sim. 363. Scandalous 
 affidavit taken off the files, Goddard v. Parr, 24 L. J. Ch. 783 ; i^candalous matter 
 expunged, re Bailey's Settlement, 3 W. R. 133. 
 
 Who may object to scandalous matter. — An entire stranger to the suit may move 
 to have scandalous matter expunged, or the Court may itself ex mero motu make 
 an order. In Cracknall v. Janson, L. R. 11 Ch. D., at p. 13, Fry, J., said :— "Ithink 
 that when the attention of the Court is drawn to scandalous matter, be it by a 
 party to the action who is not injured, or by the proper motion of the Court, or by 
 a stranger, the arm of the Court is long enough to direct that the person who has 
 defiled its records by scandalous matter shall pay the costs of it." 
 
 In Sadlier v. Smith, 7 Pr. R. 409, V.-C. Proudfoot held that where the plain- 
 tiff's solicitor makes the application the proper course is by motion without the 
 special leave of the Court. 
 
 Against whom tfie motion may be made, — The solicitor who filed the documen 
 
I r\ 
 
 AMENDMENT OF PLEADiNGS. 
 
 251 
 
 containing the scandalous matter may be joined as a respondent to the motion and O. XXII1> 
 may be ordered to pay the costs as between solicitor and client, ex parte Simpson, r, i, 
 15 Ves. 476. In Ratray v. George, 16 Ves. 232, both counsel and agent were held 
 to he liable for costs occasioned by the scandalous matter ; and see Bishop v. 
 Willis, 5 Beav. 83 (note). A party suing in forma pauperis must pay costs for scanda- 
 lous matter, lb. Under certain circumstances a stranger to the suit making an 
 affidavit which contains scandalous matter may be ordered to pay the costs of 
 having it expunged. A clerk of the solicitor filmg the affidavit might be so liable, 
 Sadlier t-. Smith, 7 Pr. R. 409. 
 
 Costs a/motion. — The costs of the motion if successful will be as between solici- 
 tor and client, re Stewart, 15 Yes. 478, note ; Morgan & Davey's Costs in Chan- 
 cery, 28. 
 
 Onvs upon motion. — Where a paper is, in the opinion of the Court, primal facie 
 scandalous on its face, the onus rests with the patty filing it to shew its relevancy 
 to the question raised by the bill, Ruttan v. Smith, 1 Ch. Ch. R. 184. 
 
 Waiver of rif/ht to move. — Filing a replication waives all irregularities in any 
 answer previously filed, but does not waive scandal therein, lb. 
 
 179. 
 
 ni 
 
 2. The plaintiff may, without any leave, amend his state- 
 ment of claim once at any time before the expiration of the 
 time limited for reply and before replying;, or, where no defence is 
 delivered, at any time before the expiration of 4 weeks from the 
 appearance of the defendant who shall have last appeared. 
 
 See Eng. R. Sup. C, 0. XXVII., r. 2 ; O. XXIV., r. 1 ; 0. XXV. ; Eng. 0. 
 L. P. Act of 1852, s. 222 ; lb., 1856, s. 96 ; lb., 1860, s. 36. 
 
 One order of course to amend the bill, as the plaintiff may be advised, may be 
 obtained by the plaintiff upon precipe, at any time before filing the replication, and 
 within four weeks after the answer, or the last of several answers, has been filed, 
 G. 0. Chy.No.| 81. 
 
 Under the common order to amend, the plaintiff cannot entirely change the 
 nature of the bill. Smith v. Smith, Coop. temp. Eldon 141 ; McGillivray v. McCon- 
 key, 6 Pr. R. 56 ; but see Budding v. Murdoch, L. R. 1 Ch. D. 42. 
 
 If any of the defendants have answered, the name of a plaintiff cannot be struck 
 out under an order of course ; a special application for leave to do so must be made, 
 Fellowes v. Deere, 3 Beav. 353 ; Dunn v. McLean, 6 Pr. R. 97. 
 
 If one of several defendants has answered, the plaintiff cannot have more than 
 one order of course to amend, Duncombe v. Lewis, 10 Beav. 273 ; Bainbrigg v. 
 Baddeley, 12 Beav. 152 ; Winthrop v. Murray, 7 Ha. 150 ; Kemp v. Jones, 1 
 Ch. Ch. R. 374. 
 
 Adding a defendant is an amendment within G. O. Chy. No. 81, Attorney-Gen- 
 eral V. Nethercoat, 2 M. & C. 604 : amendment by order of course after a special 
 order is irregular. Edge v. Duke, 10 Beav. 184. 
 
 A motion for an injunction held abandoned by amending the bill pending the 
 motion, Gouthwaite v. Rippon, 1 Beav. 54 ; Moneypenny v. Dering, 1 W. R. 99 ; 
 Macdonell v. Street, 13 Gr. 1G8 ; and see Westacott v. Cockerlino, 13 Gr. 159. 
 
 After an injunction had been obtained by a sole plaintiff, the bill was amended 
 by adding a co-plaintiff : — Held, that the injunction was gone by the amendment, 
 Attorney-General r. Marsh, 16 Sim. 572 : but such is not necessarily the result, 
 Dan. Chy. Pr. 349, 360, 1527 : and it is not essential that the order should expressly 
 state that the amendment is without prejudice to the injunction, lb. Davy v. 
 Davy, 2 Ch. Ch. R. 81, has not, in more recent years, been considered as shewing 
 the true practice. If the bill is amended in some respect which would have 
 affected the right to the injunction when obtained, the injunction is gone ; other- 
 wise it is unaffected by the'amendment ; see Evans v. Root, 1 Ch. Ch. R. 357. 
 
 3» 
 
252 
 
 JUDICATURE ACT. 
 
 O. XXIII. " Without any leave." — Formerly it was necessary to obtain an order to amend 
 
 H, 9, even where the amendment was as of right. Under these words the ex parte order 
 
 will be unnecessary. Note the words " if any " in rule 10 of this order. 
 
 " The laat of several answers," in Chancery G. O. No. 81, means the last of 
 the several answers filed by several defendants, Dalton v. Hayter; 7 Beav. 586 ; 
 Lester v. Archdale, 9 Beav. 156, and not the last answer filed at the time of applying 
 for the order, Arnold v. Arnold, 9 Beav. 206 ; Collett v. Preston, 3 Mac. & G. 432. 
 
 180. 
 
 3. A defendant who has set up in his defence any set-off or 
 counter-claim, may, without any leave, amend such set-off or 
 counter-claim at any time before the expiration of the time 
 allowed him for pleading to the reply, and before pleading 
 thereto, or in case there be no reply, then within 28 days 
 from the filing of his defence. 
 
 See Eng. E. Sup. C, 0. XXVII., r. 3. 
 
 " Counter-claim."— See notes to sec. 16, sub-s. 4. 
 
 " Time allowed him for pleading to the reply." —The time allowed is four days, O. 
 XX., r. 3. 
 
 " Within 28 dayt.''^ — As to computation of time, see 0. LII. Can this right be 
 exercised after the pleadings are closed under 0. XXI ? 
 
 181. 
 
 4. Where any party has amended his pleadings under either 
 of the last 2 preceding Rules, the opposite party may, within 
 8 days after the delivery to him of the amended pleading, 
 apply to the Court or a Judge, to disallow the amendment, or 
 any part thereof, and the Court or Judge may, if satisfied that 
 the justice of the case requires it, disallow the same, or allow 
 it, subject to such terms as to costs or otherwise as may seem 
 just. 
 
 See Eng. R, Sup. C, O. XXVIL, r. 4. 
 
 " Within 8 days." — As to computation of time, see 0. LII. 
 
 "Court or a Jvdge." — See notes to O. IV., r. 1 (o). 
 
 'To disallow the amendment." — The more sensible course to pursue seems {o be 
 that the plaintiff, when filing his bill, comparatively in the dark, should file a 
 general statement of his case, await the answer, and then by amendment supple- 
 ment the bill with more particular allegations. The order authorizes a full 
 amendment of the bill, as a matter of right, and this is a far better course than for 
 the plaintiff to make all sorts of charges of fraud, etc., in his bill at random, and 
 then by amendment withdraw then all again, after the defendant had been com- 
 . pelled to incur costs in answering them. The intention of the order under which 
 this amendment is made is to enable the plaintiff to bring the whole case before the 
 Court, and to do this it authorizes the moit liberal amendment, per Blake, V. C, 
 in McGillivray v. McConkey, 6 P. R. 56. 
 
 See notes to O. XXIII., r. 1, as to what amendments are proper or should be 
 . allowed. 
 
 Costs. — In McGillivray v. McConkey, 6 Pr. R. 56, an application was made to 
 strike out some amendments, Blake, V. C, said: — "If such an application as the 
 present were granted it would open the door to applications without end in Cham- 
 bers for costs of amendment in -all cases where the defendant has to answer new 
 matter, or where his answer filed is rendered to a certain extent valueless by the 
 
' • m }'' 
 
 AMENDMENT OF PLEADINGS. 
 
 253 
 
 Btriking out of portions of the bill. In most cast" the costs of the application would O. XXIII* 
 far exceed the expense of the new answer require/i, or of the old answer rendered H. 4. 
 partially unnecessary. I think, therefore, ( L) viiat if a plaintiif amends his bill 
 by striking out portions and altering it so that tiie answer put in is rendered useless, 
 as a general rule the defendant should receivo the costs of this portion of his defence 
 rendered useless by the act of the plainti£f. fiut, (2) if the amendments are not of 
 so wide a scope as this, although so extensive as to contain new charges which may 
 occasion another answer, I think that the plaintiff is not bound to have made such 
 charges in his original bill, and the defendant, if eventually ordered to pay costs, 
 should bear also such additional costs ; and (3) when a party is entitled to costs it 
 is not proper to make the application for them in Chambers. It is proper to make it at 
 the hearing, when the Judge has the whole case before him. In nine cases out of ten 
 he can then better judge of the nature and propriety of the amendments, and in the 
 tenth case he can refer it to the Master to ascertain this, and to act upon his find- 
 ing in the taxation." 
 
 As to taxing costs of unnecessary amendments, Burchell v. Giles, 11 Beav. 34 ; 
 Watts V. Manning, 1 S. & S. 421 ; Pledge v. Buss, Johns, 663 ; and where import- 
 ant allegations contained in the original bill were struck out by amendment, the 
 plaintiff had to pay the additional costs occasioned, Strickland v. Strickland 3 
 Beav. 242 : Mavor v. Dry, 2 S. & S. 113 ; Mounsey v. Burnham, 1 Ha. 22. And see 
 Bower v. Cooper, 2 Ha. 408, as to the separation of costs of a defence disproved by 
 the evidence. 
 
 183. 
 
 5. Where any party has amended his pleading under Rule 2 
 or 3 of this Order, the other party may without leave amend 
 his former pleading within 4 days after the delivery of the 
 pleading so amended under such Rule : or he may apply to the 
 Court or a Judge for leave to amend his former pleading within 
 such further time and upon such terms as may seem just. 
 
 See Eng. R. Sup. C, O. XXVII., r. 5; 0. XXIV., r. 3 ; G. O. Chy. Nos. 
 153-155. 
 
 " May." — It is not obligatory upon the other party to amend his former plead- 
 ing. If he do not it stands as an answer so far as it is applicable, and the state- 
 ments introduced by the amendment are not taken as admitted in Ontario, 
 although it would be otherwise in England, 0. XV., r. 24. 
 
 183. 
 
 6. Either party may amend his pleading at any time without 
 order on filing the written consent of the opposite party or his 
 solicitor. 
 
 In Powell V. Jewesbury, L. R. 9 Ch. D. 34, it was held that the rule in Chancery 
 practice that a defendant cannot demur to what he has previously answered is no 
 longer in force ; that leave to amend the statement of defence authorized the put- 
 ting in a demurrer to part of the statement of claim ; and that the defendant's plead- 
 ing was regular. 
 
 " Within 4 dayt" — Aa to computation of time, see 0. LII. ^ 
 
 " Court or Judge."— See notes to O. IV., r. 1 (a). 
 
 Mutt the content be verified hy affidavit ? — See notes to O. VI., r. 1. 
 
 184. 
 
 7. In all cases not provided for by the preceding Rules 
 numbered from 2 to 6, of this Order, application for leave to 
 
 v\ 
 
 
254 
 
 JUDICATURE ACT. 
 
 O. XXIII. 
 
 B. T. 
 
 amend any pleading may be made by either party to the Court 
 or a Judge in Chambers, or to the Judge at the trial of the 
 action, and such amendment may be allowed upon such terms 
 as to costs or otherwise, as may seem just. 
 
 See Eng. R. Sup. C, O. XXVII., r. 6. 
 
 "Judge in Chamhera." — See notes to O. IV., r. 1 (o). 
 
 " Upon lueh teinns." — See notes to 0. XXIII., r. 1. 
 
 I' 
 
 r ;.( 
 
 ' 
 
 185. 
 
 8. If a party who has obtained an order for leave to amend 
 a pleading delivered by him does not amend the same within 
 the time limited for that purpose by the order, or if no time is 
 thereby limited, then within 14 days from the date of the 
 order, such order to amend shall, on the expiration of such 
 limited time as aforesaid, or of such 14 days, as the case may 
 be, become, ipso facto, void, unless the time is extended by 
 the Court or a Judge. 
 
 See Eng. K. Sup. C, O. XXVII., r. 7. 
 
 This is similar to the Chancer]^ order. A plaintiff having obtained an order 
 to amend his bill is to amend within fourteen days from the date of the order ; 
 otherwise the order to amend becomes void, and the case as to dismissal stands in 
 the same situation as if the order had not been made, G. 0. Chy. No. 83. 
 
 This order has been held to apply to amendments effected by special leave, Grid- 
 land V. Lord DeMauley, 2 D. a Sim. 560 ; and includes cases where liberty is 
 mven to amend upon the allowance of a demurrer, Bainbrigge v. Baddeley, 12 
 Beav. 152 ; Armitstead v. Durham, 11 Beav. 422. 
 
 " Within 14 days." — As to computation of time, see 0. LII. 
 
 " Unleas the time.it extended." —Aee O. LII., r. 9. 
 
 " Court or a Judge,"— See notes to 0. IV., r. 1 (a). 
 
 186. 
 
 9. A pleading may be amended by written alterations in 
 the copies filed and served and by additions on paper to be 
 interleaved therewith if necessary; unless the amendments 
 require the insertion of more than 200 words in any one 
 place, or are so numerous or of such a nature that the making 
 them in the copies filed and served would render the same 
 diflficult or inconvenient to read; in either of which cases 
 the amendment must be made by delivering a print or fresh 
 copy of the pleading as amended. 
 
 See Eng. R. Sup. C, O. X'X '''II., r. 8. 
 
 " Filed."— This word is not in the corresponding English rule, the pleadings 
 there being delivered merely and not usually filed. 
 
 "Delivering," in the second to last line, includes filing, O. XV., r. 26. 
 
.^ 
 
 DEMURRER. 
 
 187. 
 
 255 
 
 10. Where any pleading is amended, such pleading when »• xxm. 
 amended shall be marked with the date of the order, if any, ■*• *®* 
 under which the same is so amended, and of the day on which 
 
 such amendment is made, in manner following, viz.: "Amended 
 day of 
 
 See Eng. K. Sup. C, O. XXVII, r. 9. 
 
 '^ If any." — Amendments may in Bome cases be m&de without any order, see rules 
 2, 3 & 5 of this Order. 
 
 (a) Where a pleading is amended, the amendment shall be 
 written in ink of a different colour from that used in the original 
 pleading. 
 
 188. 
 
 11. Where a pleading ia amended, such amended pleading 
 shall be delivered to the opposite party within the time allowed 
 for amending the same. 
 
 See Eng. R. Sup. C, O. XXVII., r. 10. 
 
 Failure to comply with this rule probably incurs the penalty of rule 8. 
 
 f?l 
 
 ORDER XXIV. 
 Demurrer. 
 
 189. 
 
 1. Any party may demur to any pleading of the opposite •• xx*'^* 
 party, or to any part of a pleading setting up a distinct cause *• *' 
 
 of action, ground of defence, set-otf, counter-claim, reply, or as 
 the case may be, on the ground that the facts alleged therein do 
 not shew any cause of action or ground of defence to a claim or 
 any part thereof, or set-off, or counter-claim, or reply or as the 
 case may be, to which effect can be given by the Court as 
 against the party demurring. 
 
 See Eng. R. Sup. C, O. XXVIIL, r. 1. 
 
 This rule is considered in the notes to the next succeeding rule. 
 
 190. 
 
 2. A demurrer shall state specifically whether it is to the 
 whole or to a part, and if to part only, to what part, of the 
 pleading of the opposite party. It shall state some ground 
 
 
266 
 
 JUDICATURE ACT. 
 
 O. XXIV. 
 B. 9. 
 
 I. I 
 
 in law for the demurrer, but the party demurring shall not, 
 
 on the argument of the demurrer, be limited to the ground so 
 
 stated. A demurrer may be in the Form No. 74 in Appendix (D) 
 
 hereto. If no ground, or only a frivolous ground of demurrer 
 
 is stated, the Court or a Judge may set aside such demurrer, 
 
 with costs. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 2 ; R. S. O., c. 60, s. 128. 
 
 *' Any party." — In Chancery only a defendant could demur. If the answer did 
 not confess the material allegations in the bill the plaintiSf had to prove them 
 whether traversed or not, and if the answer did confess and did not sufficiently 
 avoid the bill, the plaintiff set down the cause for hearing upon bill and answer. 
 Under the new practice the plaintiff must still prove his case if not admitted (O. 
 XV., r. 24), and if admitted and not sufficiently avoided a motion for judgment 
 (equivalent to a hearing upon bill and answer) may be made under O. XXXVI., 
 r. 8. A plaintiff will have the option, however, of demurring to a btatement em- 
 bodying a confession and avoidance under the rules under consideration. 
 
 '^ May demur." — Whenever any ground of defence is apparent on the bill itself, 
 either from matter contained in it, or from defect in its frame, or in the case made 
 by it, the proper mode of defence is by demurrer. A demurrer is an allegation of 
 a defendant which, admitting the matters of fact alleged by the bill to be true, 
 shews that as they are therein set forth they are insufficient for the plaintifif to 
 proceed upon, or to oblige the defendant to answer ; or that fur some reason apparent 
 on the face of the bill, ur because of the omission of some matter which ought to 
 be contained therein, or for want of some circumstance which ought to be attendant 
 thereon, the defendant ought not to be compelled to answer, Mitford. Eq. PI. 128. 
 
 The rule that all matters of fact appearing on a bill are admitted for the pur- 
 poses of a demurrer has been carried so far that the Court has refused to allow the 
 inaccurate statement of a deed in the bill to be corrected by a reference to the deed 
 itself, Cuddon v. Tite, 1 Giff. 395 ; and see Campbell v. McKay, 1 M. & C. 603. 
 
 The old rule was that ambiguous statements in a bill may, on demurrer, be 
 construed adversely to the pleader, Vernon v. Vernon, 2 M. & C. 145. The later 
 rule is laid down in Grant v. Eddy, 21 Gr. 568, as follows : — Under the present 
 system of pleading, it is the duty ol the Court, on perusing a pleading with a view 
 of ascertaining whether or not it is sufficient on demurrer, to put a fair and reason- 
 able construction on the pleading to ascertain what is reasonably to be inferred 
 from tlie language used, and if, as a whole, it presents a case entitling the plaintiff 
 to relief, to allow it to stand, and if even there be some statements which, if taken 
 alone, would render the case ambiguous, yet these should be taken in connection 
 with the remainder of the pleading, so as to make, where practicable, a consistent 
 story entitling the party to relief. A pleader, when de Jing with facts peculiarly 
 within the knowledge of the opposite party, is not required to be as precise and [.ar- 
 ticular as if the pleading were in respect of matters known to both. Where a bill 
 alleged with sufficient certainty enough to shew, if true, the relation of trustee and 
 cestui que tru^t to exist between the plaintiff and defendant, the Court, although 
 portions of the bill did not come up to the requirement in this respect, overruled a 
 demurrer for want of equity. 
 
 tSince the Judicature Act, the Court will allow demurrers less frequently than 
 formerly. In one case it was said that the moral deducible from it was that it was 
 now useless to demur. This remark must, however, as pointed out by Messrs. 
 Cunningham & Mattinson (p. 90), be confined to cases in which a demurrer is filed 
 on technical grounds, and not where it raises the whole question to be determined 
 in the action. Iv. order to discourage demurrers where filed not with this view, the 
 Court will allow the plaintiff to amend without costs, Halliwell v. Counsell, 38 
 L. T. N. S. 176. 
 
 Demurrer for mvltifariotumess. — By a marriage settlement real estate was limited 
 to such uses as the husband and wife should appoint, and, in default of appointment, 
 to the use of the trustees during the life of the wife, on trust for her, for her 
 separate use, with remainder to the husband in fee. The husband entered into a 
 contract to sell the property, the purchaser having notice of the provisions of the 
 settlement. The purchase mone^ was paid to the trustees of the settlement, and a 
 draft conveyance was approved, in the form of an appointment by the husband and 
 
\ r\ 
 
 DEMXJRRER. 
 
 267 
 
 wife to the purchaser, but before the conveyance had been executed the husband ®* 
 suddenly died, having, by a will dated before the contract, devised all hid real K. 
 estate to trustees upon trust for his widow for life, and after her death to sell iind 
 divide the proceeds as therein directed. The widow, who was one of the executors, 
 brought an action against the purchaser, the other executors, and the devisees in 
 trust under the husband's will, asking the Court to determine whether she could be 
 compelled to concur in the conveyance to the purchaser, what was the effect of the 
 contract for sale, what would be the devolution of the purchase money if the contract 
 should be completed, and whether, if the contract was compJeted by the trustees of 
 the settlement alone, the purchaser would be entitled to compensation out of the 
 purchase money in respect of the plaintiff's life interest : — Held, that the statement 
 of claim was not open to demurrer by the purchaser on the ground that he was not 
 interested in all the questions raised, or on the ground that only a declaratory 
 decree was asked for. James, L. J., said :— "Then as to the difficulty suggested, 
 that the defendant Barker will be kept here as a party while questions in which 
 he is not interested are dealt with and disposed of, one of the most beneficial of the 
 • ules under the raw system is, that it is quite competent for the Court to say. We 
 will have those two questions in which he is interested tried first — the two first 
 questions, which relate entirely to the demurring defendant, viz., as to what are 
 his rights under the contract— and the Court can put those two questions in the 
 course of trial in the first instance, and determine them as between him and 
 the other parties, and he will not be prejudiced in any way by the other matters 
 which have to be disposed of. It seems to me it would be qilite right that the 
 Court should determine in the first instance, what are the rights of Mrs. Barker as 
 against the representatives of the testator." At another place, the same learned 
 Judge said : — "One objection is for multifariousness, but that has ceased to be an 
 objection by the express enactment of the Judicature Act, although, of course, it 
 may be stated," Cox v. Barker, L. R. 3 Ch. D. 359. 
 
 " Any part of a pleading." — A demurrer as to one part, and a defence as to the 
 remaiiidT, are to be combined in one pleading, O. XXIV., r. 4. 
 
 Either party may withov. .ave plead and demur to the same pleading by filing 
 an affidavit as required by O. XXIV. , r. 5, or upon obtaining an order under O. 
 XXIV., r. a. A demurrer will not be allowed to one paragraph when, if taken 
 along with another paragraph, it would be a good pleading, Nathan v. Batchelor, 
 W. K. (1876) 172 ; and see Grant v. Eddy, 21 Gr. 668, iupra. 
 
 A demurrer to part of a statement of claim cannot be sustained if the matter 
 demurred to supports the plaintiff's right to any relief, Watson v, Hawkins, 24 W. 
 R. 884. 
 
 If a paragraph in a pleading set up a distinct cause of action, ground of defence, 
 set-off, counter-claim, or reply, the proper course for the party objecting thereto is 
 to demur, and not to apply at Chambers to strike out the paragraph, lb. 
 
 As to form of partial demurrer and cases, see notes to O. XXIV., r. 4. 
 
 Want nf parties. — When a defendant demurs for want of parties he should shew 
 with sufficient precision the persons who ought to be parties, not necessarily bv 
 name but in sucn a manner as to point out to the plaintiff the objection to his bill, 
 and enable him to amend by adding the proper parties, Calvert v. Linley, 21 Gr. 
 470. 
 
 Demurrer after ttatement of defence.— The rule of Chancery practice that a 
 defendant cannot demur to what he has previously answered is no longer in force, 
 Powell V. Jewesbury, L. R. 9 Ch. D. 34. Leave to amend a statement of defence 
 authorizes the putting in a demurrer to part of the statement of claim, Ih. 
 
 Joinder of issue and dtmurrer. — A party may, in the same pleading as his de- 
 murrer, join issue upon the other paragraphs of the preceding pleading ; and then, 
 upon the argument of the demurrer, he will be taken to admit only the facts stated 
 in the paragraphs demurred to, Watson v. Hawkins, 24 W. R. 884. 
 
 A specially indorsed m-it, together with a notice in lieu of statement of claim, 
 under O. XVII.. r. 2, arq equivalent to a statement of claim for all purposes, and 
 a defendant is therefore entitled to demur to them, Robertson v. Howard, 2tf W. 
 R. 683. 
 
 Statute of Frauds,— A defence founded on the Statute of Frauds cannot now be 
 raised by demurrer, Catling v. King, It. R. 5 Ch. D. 660 : see also Morgan v. 
 Worthington, 38 L. T. N. S. 443, and O. XV., r. 23. 
 
 17 
 
 XXIV. 
 
 it. 
 
258 
 
 JUDICATURE ACT. 
 
 Ml-: 
 
 O. XXIV* statute of Limitations. — In Wakelee v. Davis, 25 W, R. 60, it was held that the 
 
 Mt, ill Statute of Limitations must, under the new procedure, be pleaded, and cannot be 
 
 raised by demurrer. In Dawkins v. Lord Penrhyn, L. R. 6 Ch. D. 318, however, 
 it was held that inasmuch as the Statute of Limitations does not merely bar the 
 right to recover land but takes away the title to it, the defence may be raised by 
 demurrer. Catling v. King, and Wakelee v. Davis, above cited, distinguished as 
 being cases in which the Statute took away the remedy but not the right ; see also 
 Noyes v. Crawley, L. R. 10 Ch. D. 31, where it was held that the Statute of Limi- 
 tations was a good defence to a claim for partnership accounts, and could be set up 
 on demurrer. 
 
 " It shall state some ground in law," — Hitherto at Common Law it has been suf- 
 licient in a demurrer to set out some one ground of demurrer. Other grounds 
 might be taken in argument, and if the demurrer was allowed upon any ground the 
 costs followed as a matter of course. 
 
 In Chancery all grounds of demurrer intended to be argued were usually stated 
 in the pleading. It was sufficient, however, to state generally that the objection 
 was th.'vt no grounds appeared in the bill which would entitle the plaintiff to the 
 relief asked. Other grounds of demurrer might indeed be taken upon the argument 
 — called demurrers ore tenus— hut if the ground raised by the pleading failed the 
 success of the other grounds did not entitle the defendant to the costs. Rump v. 
 Greenhill, 20 Beav. 512 ; Henderson v. Cook, 4 Drew. 306 ; Barber v. Barber, 4 
 Drew. 666 ; Cooper v. Earl Powis, 3 D. & Sm. 688. 
 
 The authorities as to the disposition of the costs in such cases have not been 
 uniform. The present practice in Chancery where a demurrer on record is over- 
 ruled and a demurrer ore tenus is allowed, is to over-rule the former with costs and 
 to allow the latter without costs, Roche v. Jordan, 20 Gr. 573 ; Prince v. Lough, 24 
 Gr. 276. 
 
 Where a demurrer on two grounds succeeds as to one, and fails as to another, no 
 costs are given on either side, Benson v, Hadfield, 5 Beav. 546 ; Allan v. Houlden, 
 6 Beav. 148 ; and see Paine v. Chapman, 6 Gr. 3:j8 ; Glass v. Munsen, 12 Gr. 77 ; 
 Skinner v. Palmer, 20 Gr. 374. 
 
 Costs when answer filed to demurrable hill. — Where defendants had set up in their 
 answer several grounds of defence on which much evidence was gone into, and the 
 Court, without going into these defences, dismissed the plaintiff's bill on a ground 
 not argued at the bar, and which might have been taken by demurrer to the bill, it 
 was held (Esten, V.-C., dissentiente) that the defendants were, notwithstanding, 
 upon the authorities entitled to the whole costs of their defence, Simpson v. Grant, 
 5 Gr. 267. 
 
 It being contended that the defendants, not having taken the point upon which 
 the cause turned b^ demurrer, they were not entitled to receive their costs, 
 Blake, C, after reviewing the cases, said :—" They tend to shew that in a plain 
 case, when all the questions can be effectually disposed of upon demurrer, a de- 
 fendant is bound to adopt that course at the peril of costs. . . . But it is 
 abundantly clear, both upon reason and authority, that there is no such general rule 
 M that contended for." 
 
 ' In a suit by the purchaser for specific performance of a contract for the sale of 
 
 an estate, the vendor reserving the " necessary land for making a railway," it was 
 held that the reservation was void for uncertainty, and that the contract could not 
 be enforced, and that though the defence was raised by answer and not by demurrer, 
 the bill must be dismissed with costs, Pearce v. Watts, L. R. 20 Eq. 492. 
 
 In Bush V. Trowbridge Waterworks Company, L. R. 10 Ch. App. 459^ on appeal 
 from the Master of the Rolls, where the bill was dismissed at the hearing the de- 
 fendant was not deprived of his costs on the (j^round that he might have raised the 
 game defence by demurrer. James, L. J., said : — " A great many cases have been 
 referred to where the Court was of opinion that there was some technical objection, 
 or that there was some other point which might have been raised, and c"u;ht to 
 have been raised, if the parties had acted reasonably, by way of simple dei..urrer, 
 which would have rendered the continuance of the suit unnecessary, and which 
 the Court may take into consideration in dealing with the costs of the suit. But 
 the Master of the Rolls did in this case exercise his judicial discretion, and it is not 
 the practice of this Court to interfere with the exercise of a judicial discretion, 
 especially in a case like this, in which it has always been the custom to convert all 
 these matters, which would otherwise come on upon interlocutory motions, vt 
 
* i ifx 
 
 DEMURRER. 
 
 rapidly as possible, into a stage of final hearing, so as to have the whole thing 0« JLl 
 brought to a conclusion as quickly as possible, and so as to have only one appeal in- h. '4. 
 stead of two." 
 
 In (irildersleve v. Cowan, 25 Gr. 460, it is said that one principle upon which 
 this Court has steadily acted is, that where two courses of proceeding are open, one 
 less expensive than the other, and a part;^ can with equal advantage to himself 
 adopt either, and he takes the more expensive one he does so at the peril of costs. 
 Where, therefore, a woman, after the death of her husband, was joined as a party 
 defendant, in a suit upon a mortgage created by her late husband, in wl; ch she 
 had not joined, and instead of demurring put in an answer, the Court, at the hear- 
 ing, dismissed the bill as against her, without costs. Spragge, C. , in referring to 
 the case of Bush v. The Trowbridge Waterworks Company, L. R. 10 Ch. App. 
 459, above cited, and to the language of James, L. J., said : — " It is clear that the 
 language of the Lord Justice does not apply to the very simple case of this defend- 
 ant, as to whom it was so obviously a mistake to make her a party at all that she 
 ought to have demurred ; or, what would have been still better, have intimated to 
 the plaintiffs, through her solicitor, that, not having joined in the mortgage her 
 rights could not be brought in question in the suit." Saunders v. StuU, IH 6r. 590, 
 approved and followed. 
 
 In Sheehan v. Great Eastern Railway Company, L. R. 16 Ch. D. 59, it was 
 said that objections for want of parties should be made promptly, and may not be 
 postponed till the hearing where no impediment exists to raising the objection at 
 once. 
 
 Charges of fraud do not justify answering a demurrable bill ; and where the 
 defendant to such a bill answered, and the cause went to a hearing, the bill was 
 dismissed without costs, Saunders v. Stull, 18 Gr. 590. 
 
 269 
 
 XXIV. 
 
 191. 
 
 3. A demurrer shall be delivered in the same manner and 
 within the same time as any other pleading in the action. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 3. 
 
 " Delivered."— Deliyery includes filing, O. XV., r. 26. 
 
 "Same manner."— Set) O. XV., rr. 7, 8. 
 
 *• Same time."— See 0. XVIIL, rr. 1, 2. 
 
 A defendant who has obtained an order extending the time to " deliver his 
 defence," may demur within such extended time, Hodges v. Hodgss, L. R. 2 Ch. 
 D. 112 ; but see Boultbee v. Cameron, 2 Ch. Ch. R. 41 ; Chamberlain v. McDonald, 
 li. 204. 
 
 192. 
 
 4. A defendant desiring to demur to part of a statement of 
 claim, and to put in a defence to the other part, shall combine 
 such demurrer and defence in one pleading. And so in every 
 case where a party entitled to put in a further pleading desires 
 to demur to part of the last pleading of the opposite party, he 
 shall combine such demurrer and other pleading. 
 
 A defendant put in a statement of defence, not demurring to any part of the 
 statement of claim. The statement of claim was amended, not making a substan- 
 tially new case. The defendant obtained leave to amend his statement of defence, 
 •^'id put in a statement of defence, and a demurrer to part of the statement of 
 claim. A demurrer "to such part of the amended statement of claim as claims 
 damages alleged to have been sustained by reason of the alleged wrongful acts of 
 the defendant, in opening the accounts therein in that behalf referred to '' : — Held, 
 good in form, Powell v. Jewesbury, L. R. 9 Ch. D. 34. 
 
i'?:? 
 
 lir i 
 I. 
 
 I 
 
 1 '^ 
 
 (f ! 
 
 260 JUDICATURE ACT. 
 
 O. XXIV. A demurrer to part of the prayer of a bill is not, on that account, erroneous in 
 
 B. 4. form. Where a bill prays alternative relief, a demurrer to one of the alternatives 
 
 is not irregular, Abbott v. The Canada Central Railway Company, 24 6r. 579. 
 
 In the above case the demurrer was as follows : As to such part of the plain- 
 tiff's said bill as prays for a foreclosure or sale of the said railwajr, and that pos- 
 session of the said railway may be delivered to the said plaintiff, and that a 
 manager may be appointed to take possession, and run and operate the said 
 railway, we demur thereto for the want of equity, and, without admitting any of 
 the allegations in the said bill contained, we submit that no case is made on the 
 plainti^' own shewing, entitling him to an^ such relief in respect of the said 
 matters, as against us ; and we demand the judgment of the Honourable Court 
 whether we shall be compelled to make any further or other answer to the said 
 bill. In his judgment, Proudfoot, V. C, said :— " I think the demurrer is suilici- 
 ceiitly specific, and defines very precisely what is objected to. It is to so much of 
 the prayer as seeks a sale or foreclosure, delivery of possession, and the appoint- 
 ment of a manager. I do not know how it could pomt out more accurately the 
 Sart of the bill intended to be objected to. No doubt a partial demurrer must 
 efine the part of the bill referred to, Mit. Eq. PI. 214 ; Barnes v. Taylor, 4 W. R. 677 ; 
 and in expressing the parts of the bill demurred to, it will be sufficient to do so by 
 way of exception, as by demurring to all except certain portions so long as it dis- 
 tinctly appears to what the demurrer is applied, Lewis Eq. Draft. 254 ; Hicks v. Rain- 
 cock, 1 Cox 40 ; Robinson v. Thompson, 2 Y. & B. 118. The rule thus expressed 
 seems to be sufficiently complied with." 
 
 193. 
 
 5. Either party may without leave plead and demur to the 
 same pleading at the same time by filing an affidavit by such 
 party distinctly denying some one or more material statement 
 or statements in such pleading ; or stating that the several mat- 
 ters sought to be pleaded by way of confession and avoidance 
 are respectively true in substance and in fact ; and that he is 
 further advised and believes that the objections raised by such 
 demurrer are good and valid objections in law. The affidavit 
 is to be annexed to and filed with the plea and demurrer, and a 
 copy of the affidavit is to be served with the plea and demur- 
 rer. 
 
 " Without leave," — At common law leave had to be obtained, see R. S. 0., c. 50, 
 8. 118 ; but in Chancery no leave was necessary. The English rules adhere to the 
 common law practice, Eng. R. Sup. C, 0. XXVIII., r. 5. 
 
 "An affidavit." — No affidavit was formerly necessary in Chancery ; and at law, 
 only when required by the Judge. 
 
 "By such party."— Vormerly an affidavit by the party's attorney was sufficient, 
 if the Judge required an affidavit to be put in. If an affidavit from the party 
 cannot be ootained application may be made under the next rule. 
 
 " The objeetions raised."— It is not necessary in a demurrer to state all the 
 grounds of demurrer, 0. XXIV., r. 2. 
 
 "Plea."— The use of this word was probably accidental. A plea is usually 
 termed, under the new practice, a statement of defence. 
 
 194. 
 
 6. If the party demurring desires to be at liberty to plead 
 as well as to demur to the matter demurred to without filing 
 such affidavit, he may, before demurring, apply to the Court 
 
 i 
 
 It !< 
 
 i V 
 
I IN 
 
 DEMURRER. 
 
 261 
 
 or a Judge for an order giving hira leave to so plead and ** **'^* 
 demur, such application being supported by such affidavit as * ' 
 now required in the Superior Courts of Law ; and the Court or 
 Judge, if satisfied that there is reasonable ground for the de- 
 murrer, may make an order accordingly, or may reserve leave 
 to him to plead after the demurrer is overruled, and may direct 
 which issue shall be first disposed of; or may make such other 
 order and upon such terms as may be just. 
 
 See Eng. R. Sup. 0., O, XXVTII., r. 6. 
 
 "Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 "Such affidavit at now required." — R. S. O., c. 50, 8. 118, is as follows : Either 
 party may, bv leave ot the Court or a Judge, plead and dsmur to the same pleading 
 at tiie same time, upon an affidavit by such party or his attorney, if required by 
 the Court or Judge, to the efiFect that he is advised and believes that he has just 
 ground to traverse the several matters proposed to be traversed by him, and that 
 the several matters sought to be pleaded, as aforesaid, by way of confession and 
 avoidance are respectively true in substance and in fact, and that he is further 
 advised and believes that the objections raised by such demurrer are good and valid 
 objections in law, and the Court or a Judge may direct which issue shall be first 
 disposed of. 
 
 Reg. Gen. of May 21, 1877, 41 U. C. R., 565, is as follows : That leave shall 
 not be given to demur and traverse the same pleading, unless on affidavit distinctly 
 denying some one or more material statement or statements in such, and that unless 
 in exceptional cases, in the discretion of the Court or Judge, affidavits merely as to 
 the bebef of the existence of just grounds of traverse shall not be sufficient. 
 
 196. 
 
 7. Where a demurrer either to the whole or part of a plead- 
 ing is delivered, either party may enter the demurrer for argu- 
 ment immediately, and the party so entering such demurrer 
 shall on the same day give notice thereof to the other party. 
 
 (a) If the demurrer shall not be entered and notice thereof 
 given within 10 days after delivery, and if the party whose 
 pleading is demurred to does not within such time serve an 
 order for leave to amend, the demurrer shall be held sufficient, 
 for the same purposes, and with the same result as to costs, as 
 if it had been allowed on argument. 
 
 See Eng. R. Sup. 0., O. XXVIII., r. 6 ; G. 0. Chy., Nos. 121, 146, 418. 
 
 "Enter the demurrer for argument." — For form of prcecipe upon entry for argu- 
 ment, see Forms, No. 86. 
 
 "CKve notice."— For forms of notice, see Forms, No. 28. 
 
 The length of notice heretofore has been in Common Law four days, and in 
 Chancery seven days. 
 
 As to oases unprovided for by the new practice, in which the former practice of 
 the Courts varied, see notes to sec. 12. 
 
 " Within 10 dayt."—AM to computation of time, see O. LIL 
 
j I 
 
 262 
 
 If**' 
 
 O. XXIV. 
 
 B. 8.: 
 
 JUDICATURE ACT. 
 
 196. 
 
 8. While a demurrer to the whole or any part of a pleading 
 is pending, such pleading shall not be amended unless by order 
 of the Court or a Judge ; and no such order shall be made ex- 
 cept on payment of the costs of the demurrer. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 7 ; Reg.-Gen., T. T. (1856) Nos. 14, 15 
 (Ont.) 
 
 Under the former practice in Chancery the plaintifif might at any time prior to 
 the demurrer being set down for argument, pay to the defendant S^ for his costs of 
 demurrer and obtain an order to amend his bill, Daniell, Chy. Pr. (5th Ed. ) .509, 
 610 ; Martin v. Reid, 6 U. C. L. J. 143. If a demurrer is properly said to b« 
 " pending " from the time of its filing this useful practice will no longer be available. 
 
 ' ' Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 A plaintiff may amend after demurrer allowed and yet may appeal, Lidlitter v. 
 Long, 4 M. & C. 285. 
 
 197. 
 
 9. Where a demurrer to the whole or part of any pleading is 
 allowed upon argument, the party whose pleading: is demurred 
 to shall, unless the Court otherwise order, pay to tlie demurring 
 party the costs of the demurrer. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 8. 
 
 198. 
 
 10. If a demurrer to the whole of a statement of claim be 
 allowed, the plaintiff, subject to the power of the Court to allow 
 the statement of claim to be amended, shall pay to the demur- 
 ring defendant the costs of the action, unless the Court shall 
 otherwise order. 
 
 The Court would not generally give leave to amend after a general demurrer had 
 been allowed, Nowell v. Andover Kail. Co. 7 Jur. N.S. 839 ; but doing so was in the dis- 
 cretion of the Court, Wellesley v. Wellesley, 4 M. & C. 558 ; Tyler v. Bell, 1 Keen, 
 826 ; Sihson v. Edgeworth, 2 D. & Sm, 73 ; Osborne v. Jullion, 3 Drew. 596 ; Raw- 
 lings V. Lambert, IJ. & H. 458 ; and the later p'actice in Chancery has been, upon 
 the allowance of the demurrer, as a matter of coarse to give leave to amend unless 
 it is clear that no amendment can be made which will better the bill. Even though 
 leave to amend be given, a demurrer allowed puts an end to a pending injunction 
 Schneider v. Lizardi, 9 Beav. 461 ; demurrer allowed without prejudice to a new 
 bill. Oriental Navigation Co. v. Briggs, 10 W. R. 125. 
 
 An order allowing a demurrer with costs, carries With it the costs of a pending 
 motion, Gladstone v. Ottoman Bank, 1 N. R. 612. 
 
 A motion stood over at the request of the defendant, who then filed a demurrer 
 which was allowed, and the plaintiff ordered to pay to the defendant the costs 
 occasioned by the demurrer and the costs of the suit ; the costs incurred on the 
 motion were held to be costs in the cause, Finden v. Stephens, 12 Jur. 319 ; over- 
 ruling S. C. 11 Jur. 898. 
 
 An application to stay proceedings pending an appeal from an order overruling 
 a demurrer is to the discretion of the Court. Where, allowing plaintiff to pro- 
 ceed would BO prejudice the defendant as virtually to defeat the appeal, proceedrngi 
 
DEMURRER. 
 
 263 
 
 Lidlitter v. 
 
 will be stayed ; but where the defendant fails to shew that he would be prejinliced O. XXIV. 
 a stay will be refused. In a case where the stay moved for was refused thf (.'ourt b. iq. 
 ordered that any answer put in should be without prejudice to the appeal fruiii the 
 order overruling the demurrer, McMurray v. The Grand Trunk Railway Company 
 of Canada, 3 Ch. Ch. R. 125. 
 
 As to costs, see notes to rule 2 of this order. 
 
 199. 
 
 11. Where a demurrer to any pleading or part of a pleading is 
 allowed in a case not falling within the last preceding Rule, 
 then (subject to the power of the Court to allow an amend- 
 ment) the matter demurred to shall as between the parties to 
 the demurrer be deemed to be struck out of the pleadings, and 
 the rights of the parties shall be the same as if it had not been 
 pleaded. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 10. 
 
 200. 
 
 12. Where a demurrer is overruled, the demurring party shall 
 pay to the opposite party the costs occasioned by the demurrer, 
 unless the Court shall otherwise direct. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 11. 
 
 An order overruling a dumurrer may be appealed from though the pleading is 
 amended, Jackson v. North Wales Rail. Co., 13 Jur. 70, note ; but see Wellesley v. 
 Wellesley, 4 M. & C. 654. 
 
 201. 
 
 • 
 
 13. Where a demurrer is overruled, the Court may make such 
 order, and upon such terms as to the Court shall seem right, for 
 allowing the demurring party to raise by pleading any case 
 he may be desirous to set up in opposition to the matter de- 
 murred to. 
 
 See Eng. R. Sup. C, O. XXVIII., r. 12. 
 
 In Chancery it is usual, immediately after judgment has been given overruling 
 a demurrer, for counsel to ask for time to answer, a request which is as usuaJly 
 granted unless it is apparent that the whole point in controversy has been raised 
 by the demurrer. The terms imposed are that it shouLi be filed in some reasonably 
 snort period, and that the costs of the demurrer should be paid. 
 
 In Bell V. Wilkinson, W. N. (1878) 3, the Judge on argument of a demurrer 
 overruled it, and refu^'ed leave to the defendant to put in a statement of defence. 
 The^ defendant appealed. The Court held that the practice of the Chancery 
 Division was almost as a matter of course after demurrer- to allow the defendant 
 to put in his answer ; that under the new system of pleading introduced by the 
 Judicature Acts the practice of the Common Law Division ought, if possible, to 
 be assimilated to the practice of the Chancery Division, and that the defendant 
 ought, therefore, to have leave to put in his statement of defence. 
 
 After a demurrer had been overruled the bill was amended and the defendant 
 answered, not taking in his answer the objection which had been raised on the 
 demurrer :— Held, that the defendant might at the hearing take the same objection, 
 Johnaeaon v. BoiUiote, L. R. 2 Ch. D. 298. 
 
( ', 
 
 I. 
 
 ; 
 
 M 
 
 lit 
 
 li'^J 
 
 ^64 
 
 o. xxMr, 
 
 B. 13. 
 
 O. XXF. 
 B. 1. 
 
 
 ! 
 
 WM ' 
 
 JUDICATURE ACT. 
 
 A demurrer to the ntatement of claim by the defendant, other than the company, 
 on the ground that the action could only be maintained by the company, waa 
 allowod, but the plaintiff obtained leave to amend hia writ and statement of claim 
 by adding the company as plaintiffs, the production by him of any authority from 
 the company to sue in their name being held to be unnecessary. As the plaintiff 
 charged fraud against the demurring defendants, the question whether their costs 
 of the demurrer should be paid by him waa reserved till the trial of the action, 
 Duckett V. Gover, L. B. 6 Ch. D. 82. 
 
 An order overruling a demurrer is not an interlocutory order, Trowell v. Shen- 
 ton, L. B. 8 Ch. D. 318. 
 
 202. 
 
 14. A demurrer shall be entered for argument by delivering 
 to the proper officer a memorandum of entry in the Form No. 
 86 in Appendix (E). 
 
 See Eng. R. Sup. C, O. XXVIII., r. 13. 
 
 ORDER XXV. 
 Default of Pleading. 
 
 203. 
 
 1. If the plaintiff, being bound to deliver a statement of 
 claim, does not deliver the same within the time allowed for 
 that purpose, the defendant may, at the expiration of such time, 
 apply to the Court or a Judge to dismiss the action with costs, 
 for want of prcsucntion ; and on the hearing of such application 
 the Court or Judge may, if no statement of claim have been 
 delivered, order the action to be dismissed accordingly, or may 
 make such other order, on such terms, as to the Court or Judge 
 shall seem just. 
 
 See Eng. B. Sup. C, O. XXIX., r. 1. 
 
 " Within the time allowed for that purpo»e."—Aa to the time within which a state- 
 ment of claim must be delivered, see O. XVII. 
 
 " Court or a Judge." — See notes to O. IV., r. 1 (o). 
 
 Jurisdiction to extend tinu after dismissal. — In Whistler v. Hancock, L. B. 3 Q. 
 B. D. 83, the defendant obtained leave to appear and defend. On the 13th of 
 December a Master made an order dismissing the action for want of prosecution, 
 unless the statement of claim were delivered within a week. On the 22nd of Decem- 
 ber the plaintiff took out a summons to set aside the appearance, and this on the 
 27th of December was dismissed by the Master. The plaintiff gave notice of appeal 
 against the decision of the Master. On the 29th of D^ember the plaintiff delivered 
 a notice in lieu of statement of claim. On the 31st oi December the plaintiff took 
 out a summons for further time for delivering statement of claim, and on the 1st of 
 January the Master made an order giving the plaintiff a week's time. This order 
 was set aside on appeal by Fry, J., on the ground that the Master had no jurisdic- 
 tion to make the order. On appeal Cockbum, C. J., said :— "This is a very plain 
 
DEFAULT OF PLEADING. 
 
 266 
 
 case. The defendant obtained an order that unless the statement of claim were O. XXV. 
 delivered within a week the action should be at an end. The plaintif* took out a B« 1* 
 summons to set aside the appearance, and if he could have obtained an order to that 
 effect before the week was out he would have been the victor ; but before his sum- 
 mons could be heard he fell under the operation of the order dismissing the action, 
 and the action was at an end. It cannot be contended that the taking out of a 
 summons to set aside the appearance in the meantime could keep the actisn alive 
 after the period when, by the operation of the Master's order, it was defunct. For 
 these reasons I think the Master had no jurisdiction, and the order of Fry, J., waa 
 right." 
 
 This decision was followed in the Exchequer Division in Wallis v. Hepburn, L. 
 B 3 Q. B. D. 84 (note), where the same q testion arose. An order was made at 
 Chambers on the 8th of November, 1877, to dismiss the action unless a statement of 
 claim were delivered within ten days. The time having expired, on the 20th of 
 November a Master's order was made extending the time for delivering the ntate- 
 ment of claim. This order having been affirmed at Chambers by Pollock, B., the 
 defendants appealed. The Court (Cleasley, B., and Hawkins, J.,) after consulting 
 the Judges of the Queen's Bench Division, held that there was no jurisdiction to 
 make the order of the 20th November, the action being then dead, and that the 
 order must be set aside. 
 
 The next case was King v. Davenport, L. R. 4 Q. B. D. 402. In that case, an 
 order having been made on the 6th of May dismissing the action for want of prose- 
 cution if the statement of claim were not delivered within fourteen days, on the 
 19th of May the plaintiff took out a summons returnable the next day, the last of 
 the fourteen days, for further time to deliver statement of claim, "rhe summons 
 was, on the 20tn, by the consent of the parties in writing indorsed thereon, enlarged 
 till the 2l8t, and on the 2lRt a Master made an order giving seven days more for 
 delivery of statement of claim; Pollock B., having rescinded the order of the 
 Master on the ground that he had no jurisdiction, the action being at an end on the 
 20th of May :— Held, that the decision of the learned Judge was correct. 
 
 In Burke v. Rooney, L. R. 4 C. P. D. 226, the cases of Whistler v. Hancock 
 and Wallis v. Hepburn were distinguished. In that case, on the 25th March, a 
 Master made an order dismissing an action for want of pro-iecution, unless an affi- 
 davit in answer to interrogatories was iiled on the 31st. The affidavit was not 
 filed on that day ; but, on the day following, a summons was taken out "for further 
 time to answer the interrogatories": — Held, that it was still competent to the 
 Court or a Judge to enlarge the time for moving to set aside or vary the order of 
 the 26th of March. Lord Coleridge, C. J., pointed out that in Whistler v. Hancock 
 the order dismissing the action had been allowed to stand, being neither complied 
 with or appealed against, and that the application failed because it did not seeK to 
 set aside that order. 
 
 ^ In Carter v. Stubbn, 15 L. J. 135, a Master's order was made on June 17, dis- 
 missing the action unless the plaintiff answered certain interrogatories within seven 
 days. The plaintiff swore an affidavit in answer to the interrogatories on the 
 seventh day, but did not file it until the eighth day. On July 2 the plaintiff took 
 out a summons to rescind the order of June 17, and on July 9 a Master made an 
 order rescinding it. On appeal to Hawkins, J., at Chambers, the hearing of the 
 appeal summons was adjourned until July 20. In the meantime the plaintiff took 
 out two further summonses — one to shew cause why the time for appealing from 
 the order of June 17 should not be extended ; and the other to shew cause why the 
 same order should not be varied by altering the seven days to fourteen. On July 
 20, Hawkins, J., made an order in favour of the plamtiff on each of the two 
 summonses. On the Common Pleas Division affirming this order the defendant 
 appealed ; but the appeal was dismissed, their Lordships holding that Hawkins, J., 
 had jurisdiction to make the order. 
 
 Where an order giving leave to amend has been granted without limiting the 
 time in which the amendments are to be made, such amendments should be made 
 within fourteen days from the date of the granting of the order ; where circum- 
 stances prevented this being done, and no order dismissing the bill in the alterna- 
 tive of it not being done, was embodied in the order granting the leave to amend, 
 the referee held it to be competent to the Court to grant further time for amending, 
 even on an application made after the fourteen days have expired, if a proper case 
 was made out for it. McMurray v. Grand Trunk Railway Company, 3 Ch. Ch. R. 
 306 : and see also Vernon v. Vernon, L. R. 6 Ch. app. 833. 
 
266 
 
 JUDICATURE ACT. 
 
 
 a ; 
 
 I!. ' ;| 
 
 L 
 
 II ! 
 
 ;■: 1! 
 
 Ill 
 
 O. XXF. Abatement.— Where a plainti£F had made default in delivering his statement of 
 
 H. I, claim, and had since become bankrupt, notice of motion to dismiss fur want of 
 
 prosecution was ordered to be served on the trustees in bankruptcy, although under 
 rules of Court, 1875, 0. L., r. 1 (Ont. O. XLIV., r. 1), the action had not become 
 abated by bankruptcy, Wright v. Swindon, Marlborough and Andover Railway 
 Company, L. R. 4 Ch. D. 164. 
 
 204. 
 
 2. If the plaintiffs claim be only for a debtor liquid ted de- 
 mand, and the defendant does not, within the time allowed for 
 that purpose, deliver a defence or demurrer, the plaintiff may, 
 at the expiration of such time, enter final judgment for the 
 amount claimed, with costs. 
 
 See Eng. R. Sup. C, O. XXIX., r. 2 ; R. S. O., c. 50, a. 150. 
 
 " Within the time."-See O. XVIII.. rr. 1, 2 ; XXIV.. 3. 
 
 " Final judgment."— For forms, see Forms, Nos. 147, 148. If in an action on a 
 replevin bond, the plaintiff, instead of claiming damages, claims the amount for 
 which the bond is given, and becomes entitled to iudgment by default, his proper 
 course is to enter final judgment under rule 2 of this Order, and not interlocutory 
 judgment under rule 4, Dix v. Groom, L. R. 6 Ex. D. 91. 
 
 206. 
 
 3. Where in any such action as in the last preceding Rule 
 mentioned there are several defendants, if one of them makes 
 default as mentioned in the last preceding Rule, the plaintiff 
 may enter final judgment against the defendant so making 
 default, and issue execution upon such judgment without preju- 
 dice to his right to proceed with his action against the other 
 defendants. 
 
 See Eng. R. Sup. C, O. XXIX., r. 3. 
 
 206. 
 
 4. If the plaintiffs claim be for detention of goods and 
 pecuniary damages, or either of them, and the defendant makes 
 default as mentioned in Rule 2, the plaintiff may enter an 
 interlocutory judgment against the defendant, and the value 
 of the goods, and the damages, or the damages only, as the 
 case may be, shall be assessed as hitherto. But the Court or 
 a Judge may order that the value and amount of damages, or 
 either of them, shall be ascertained in any other way in which 
 any question arising in an action may be tried. 
 
 See Eng. R. Sup. C, O. XXIX., r. 4. 
 " Court or a Judge." — See notes to O. IV., r. 1 (a). 
 " In any other way."— See notes to sec. 47. 
 For form of judgment, see Forms, No. 162. 
 
Tl 
 
 DEFAULT OF PLEADING. 
 
 267 
 
 207. 
 
 5. Where in any such action as in Rule 4 mentioned there o. xxr, 
 are several defendants, if one of them makes default as men- •*• *• 
 tioned in Rule 2, the plaintiff may enter an interlocutory judg- 
 ment against the defendant so making default, and proceed with 
 
 his action against the others. And in such case, damages against 
 the defendant making default shall be assessed at the same 
 time with the trial of the action or issues therein against the 
 other defendants, unless the Court or a Judge shall otherwise 
 direct. 
 
 See Eng. R. Sup. C, O. XXIX., r. 5. 
 
 " Court or a Judge."— Sw notes to 0. IV., r. 1 {a). 
 
 208. 
 
 6. If the plaintiff's claim be for a debt or liquidated demand, 
 and also for detention of goods and pecuniary damages, or 
 pecuniary damages only, and the defendant makes default as 
 mentioned in Rule 2, the plaintiff may enter final judgment for 
 the debt or liquidated demand, and also enter interlocutory 
 judgment for the value of the goods and the damages, or the 
 damages only, as the case may be, and proceed as mentioned in 
 Rule 4. 
 
 See Eng. R, Sup. C, O. XXIX., r. 6. 
 
 309. 
 
 7. In an action for the recovery of land, if the defendant 
 makes default as mentioned in Rule 2, the plaintiff may enter 
 a judgment that the person whose title is asserted in the writ 
 of summons shall recover possession of the land, with his 
 costs. 
 
 See Eng. R. Sup. C, 0. XXIX., r. 7. 
 "Becovety of land."— See notes to O. VI., r. 4. 
 For form of judgment, see Forms, No. 160. 
 
 210. 
 
 8. Where the plaintiff has indorsed a claim for mesne profits, 
 arrears of rent, or damages for breach of contract, upon a writ 
 for the recovery of land, if the defendant makes default as 
 mentioned in Rule 2, or if there be more than one defendant, 
 and some or one of the defendants make such default, the plain- 
 tiff may enter judgment against the defaulting defendant or 
 defendants, and proceed as mentioned in Rules 4 and 5. 
 
 See Eng. R. Sup. C, O. XXIX., r. 8. 
 "ifMn« prq/to, rtc."— See O. IX., r. 9. 
 
 if 
 
I i 
 
 .J' 
 
 IV r. 
 
 268 
 
 U. 9. 
 
 ' ' 
 
 ii^ 
 
 :> ; ; 
 
 
 JUDICATURE ACT. 
 
 211. 
 
 0. In all other actions than those :* . the precedinjj Rules of 
 this Order mentioned, if the defendant makes default in deliv- 
 ering a defence or demurrer, the plaintiff may set down the 
 action on motion for judgment, and such Judgment shall be 
 given as upon the statement of claim the Court shall consider 
 the plaintiff to be entitled to. 
 
 See Eng. R. Sup. 0., O. XXIX., r. 10 ; G. 0. Chy. No. 270. 
 
 " Motion for judgment."— Sm O. XXXVL, r. 1. 
 
 Where one of several defendants has not appeared, while the others have aj 
 
 Seared and delivered defences, the plaintiff may move for judgment as against the 
 efendants who have delivered delenoes, under rules of Court (1876), Order XL., 
 r. 11 (Ont. Order XXXVI., r. 8), upon admission, and aa against the defaulting 
 defendant, under the combined effect of Orders XIII., r. 9 (no Ontario Order cor- 
 responding to this), and XXIX., r. 10 (Ontario Order XXV., r. 9) ; but as against 
 the latter the action must be set down on motion for judgment, and in both oases 
 two clear days' notice of motion must be given, Parsons v. Harris, L. R. 6 Ch. D. 
 694. In giving judgment in above case. Hall, V.-C, said:— "I think that the 
 motion can be made against all the defendants under the combined effect of the 
 orders ; but I also thinlc that although a party has neither appeared nor put in a 
 defence, it cannot be said that he ought not to have notice of what is going to be 
 done ; accordingly, as there has been an insufficient rotice with regard to the de- 
 fendant who has not appeared, the motion must stand over for a weeic, and a fresh 
 notice must be filed with the proper officer. I will, therefore, give leave to amend the 
 notice of motion so as to give notice for the next motion day, and as so amended it 
 must be served upon the defaulting defendant by being filed with the proper 
 officer two clear days before next motion day." 
 
 In Gillott V. Ker, W. N. (1876) 116, an action was brought against the defendants 
 for the payment of a promissory note. A statement of claim had been deliver' ' 
 but no statement of defence. The plaintiff moved, under Order XL., r. 11 (O) 
 O. XXXVL, r. 8), that one of the defendants might be ordered to pay to t.i 
 plaintiff the amount of the note, and that a receiver might be appointed of his 
 estate. IHe submitted that the allegations must be taken to be admitted under 
 Order XXIX., r. 10 (Ont. O. XXV., r. 9). The plaintiff had desired to set the 
 case down on motion for judgment, but the Clerk of Records and Writs re- 
 fused to set it down, of course, unless notice of motion for judgment had been 
 served, and a copy of this notice had been produced to him with an indorsement of 
 the defendant's default in filing a statement of defence. The Matiter of the Rolls 
 made no order on the first part of the motion. His Lordship considered that, as 
 the defendants had not pleaded, there was no admission witnin Order XL., r. 11 
 (Ont O. XXXVI., r. 8), but ordered the case to be set down on motion for judg- 
 ment on an affidavit that the defendants had made default in pleading without any 
 notice of motion. 
 
 Pending 6u«n«M.— Default in answering in a suit pending when the Judicature 
 Act came into force is not ' ' default in delivering a defence " so as to entitle the 
 plaintiff to set down the action on motion for judgment under this rule, CuUey v. 
 Buttifant, L. R. 1 Gh. D. 84 ; and see Provident Permanent Building Society v. 
 Greenhill, 76. 624. 
 
 Service of notice. — A notice of motion for judgment is a document which may 
 be delivered, in case a defendant does not appear, by filing it with the proper 
 officer, Dymond v. Croft, L. R. 3 Ch. D. 512. 
 
 213. 
 
 10. Where, in any such action as mentioned in the last pre- 
 ceding Rule, there are several defendants, then, if one of such 
 defendants makes such default as aforesaid, the plaintiff may 
 
DEFAULT OF PLEADING. 
 
 269 
 
 either set down the action at once on motion for judgment •• ^^^' 
 against the defendant so making default, or may set it down *** **' 
 against h'.m at the time when it is entered for trial or set 
 down on motion for judgment against the other defendants. 
 
 See Eng. R. Sup. C, O. XXIX., r. 11. 
 
 313. 
 
 11. In any case in which issues arise other than between 
 plaintiff and defendant, if any party to any such issue makes 
 default in delivering any pleading, the opposite party may 
 apply to the Court or a Judge for such judgment, if any, as 
 upon the pleadings he may appear to be entitled to. And the 
 Court may order judgment to be entered accordingly, or may 
 make such other order as may be necessary to do complete 
 justice between the parties. 
 
 See Eng. R. Sup. C, 0. XXIX., r. 13. 
 
 " Other than bettoeen plaintiff and defendant."— laaneu may so arise by a counter- 
 claim filed by a defendant to which a third party is made a defendant, see notea to 
 sec. 10, 8ub>B. 4. 
 
 "DeJioerin^."— Delivery includes filing, O. XV., r. 26. 
 "Court or a Judge."— See notes to 0. IV., r. 1 (a). 
 
 12. Any judgment by default, whether under this Order or 
 under any other of these Rules, may be set aside by the Court 
 or a Judj^e, upon such terms as to costs or otherwise as such 
 Court or Judge may think fit. 
 
 See Eng. R. Sup. C, 0. XXIX., r. 14. 
 
 "Court or a y«cfeie."— Prior to the Judicature Act a Judge in Chambers had 
 ^wer to set aside a final judgment signed on default of a plea, Escott v. Escott, 6 
 r. R. 10. As to meaning of the words " Court or a Judge " in the present rules, 
 see notes to O. IV., r. 1 (a). 
 
 "May he set aside."— In Atwood v. Chichester, L. R. 3 Q. B. D. 722, Bramwell 
 L. J., said : — "When sitting at Chambers I have often heard it argued that when 
 irreparable mischief would be done by acceding to a tardy application, it being a 
 departure from the ordinary practice, the person who has failed to act within the 
 proper time ought to be the sufferer, but that in other cases the objection of late- 
 ness ought not to be listened to, and any injury caused by the delay may be com- 
 pensated for by the payment of costs. This I think a correct view." 
 
 The cases in which applications have been made are too numerous even to be 
 summarized hure. They may all be found in Robinson & Joseph's, and Fisher's 
 Digests. 
 
!_ : ■) 
 
 270 
 
 O. XXVI. 
 B. 1. 
 
 1 
 
 II 
 
 1^^ 
 
 IJ: 
 
 wi 
 
 V 
 
 V 
 
 1 
 
 '}' '. • 
 
 ■ 
 
 
 JUDICATURE ACT. 
 
 ORDER XXVI. 
 Payment into Court in Satisfaction.' 
 
 316. 
 
 1. Where any action is brought to recover a debt or dam- 
 ages, any defendant may at any time after service of the writ, 
 and before or at the time of delivering his defence, or by leave 
 of the Court or a Judge at any later time, pay into Court a 
 sum of money by way of satisfaction or amends. Payment 
 into Court shall be pleaded in the defence, and the claim or 
 cause of action in respect of which such payment shall be made 
 shall be specified therein. 
 
 See Eng. R. Sup. C, O. XXX., r. 1; R. 'S. O., o. 50, as. 108-110 ; Reg.-Gen. 
 T. T. 1856. Nos. 11-13, Ont. 
 
 " Debt or damages." — The present rule extends the power of payment into Court, 
 see R. 3. 0., c. 50, s. 108. 
 
 '• Court or a Judge." — See notes to O. IV"., r. 1 'a). 
 
 "Pap into Court."— In Spurr v. Hall, L. R. 2 Q. B. D. 615, it was said that the 
 new practice does not permit a defendant in an action for nuisance raising a ques- 
 tion of title to plead payment into Court and to deny the plaintiff's right of action 
 in respect of the same pare of the statement of claim, and if he so pleads the state- 
 ment of defence will be amended as embarrassing under Order XX VII., r. 1. (Ont. 
 O. XXXIII., r. 1.) Qucere, Whether in any kind of action the defendant can in 
 respect of the same portion of the statement of olaim pay money into Court, and 
 deny the plaintiff's right to sue ? 
 
 In Berdan v. Greenwood, L. R. 3 Ex. D. 251, however, it was said that, as a 
 general rule, a defendant may by his statement of defence deny the plaintiff 's causes 
 of action, and at the same time plead payment into Court, in respect of the whole 
 or any part of them. Qucere, Whether the general rule above mentioned may under 
 special circumstances include actions brought to try a right of, or in respect of, prop- 
 erty which is denied, or to establish character which has been assailed, and actions 
 !vhere the plaintiff 's by the statement of defence charged with fraud. Quaa'e, 
 whether Spurr v. Hall, L. R 2 Q. B. D. 615 was correctly decided. 
 
 In Hawkesley v, Bradshaw, L. R. 5 Q. B. D. 302, the defendant in an action for 
 libel published in a newspaper, admitted the publication of the alleged libel, bui> 
 pleaded that, with the exception of the inuendoes alleged in the statement of claim, 
 the libel was true. In the alternative he pleaded the insertion of a full apology in 
 the newspaper and also a payment of 40^. into Court : - Held, overruling the judg- 
 ment of the Queen's Bench Division that the offering of an apology, and payment 
 into Court, and of a justification, could be pleaded together. 
 
 Where a plaintiff claims for distinct pieces of work and labour, alleged in 
 separate paragraphs of the statement of claim, a defendant who has paid money 
 into Court generally need not specify in his statement of defence how much is 
 paid in respect of each head of claim, Paraire v. Loibl, 49 L. J. N. S. C. L. 481. 
 
 See notes to rule 4 of this Order. 
 
 216. 
 
 2. Such sum of money shall be paid as hitherto into the 
 proper bank or to the prosier officer, and the proper officer 
 shall give a receipt for tne same. If such payment be made 
 
 s 
 I 
 
 ( ( 
 
^^ 
 
 PAYMENT INTO COURT. 
 
 271 
 
 before delivering his defence, the defendant shall thereupon *•• x*^^"' 
 serve upon the plaintiff a notice that he has paid in such *• *"*' 
 money, and in respsct of what claim, in the Foim No. 21, in 
 Appendix (B) hereto. 
 
 See Enf?. K. Sup. C, 0. XXX., r. 2. 
 
 "ShaJl be paid as hitherto." — In Chancery, if a defendant desired to pay money 
 into Court, v hich was of rare occurrence and usually only where he held it aa 
 trustee for others, he had to obtain an order in Chambers. Upon presentation of 
 this order at the Accountant's office, he obtained a direction to the Bank of Com- 
 merce, upon receiving which, the Bank received the money, gave one receipt to the 
 party paying and forwarded a duplicate receipt to the Accountant's office. No 
 commission was payable to any officer of the Court, see G. O. Chy. Noi. 352—354. 
 At Common Law, a plea of payment into Court was well known and of common 
 practice. The procedure was regulated by R. S. 0., o. 50, ss. 109, 121. 
 
 317. 
 
 3. Money paid into Court as aforesaid may, unless otherwise 
 ordered by a Judge, be paid out to the plaintiff, or to his 
 solicitor, on the written authority of the plaintiff. No 
 affidavit shall be necessary to verify the plaintifTs signature to 
 such written authority unless specially required by the officers 
 of the Court, or one of the officers, whose duty it is to sign or 
 countersign the cheque. 
 
 See Eng R. Sup. C, O. XXX., r. 3 ; R. S. 0., c. 50, s. 109 ; Reg.-Gen. 
 T. T.. 1856, No. 11 (Ont.) 
 
 "A Judge."~VoT meaning of this word, see O. LXI., and notes to 0. IV., 
 r. 1 (a). 
 
 " Unless specially required." — In Chancery, it has been necessary to verify the 
 signature of the party in all cases whore money in which he was interested was 
 being dealt with by his solicitor. 
 
 318. 
 
 4. The plaintiff, if payment into Court is made before 
 delivering a defence, may within 4 days after receipt of 
 notic^ of such payment, or if such payment is first stated in a 
 defence delivered then, may, before reply, accept the same in 
 satisfaction of the causes of action in respect of which it is 
 paid in ; in which case he shall give notice to the defendant in 
 the Form No. 22 in Appendix (B) hereto, and shall be at liberty, 
 in case the sum paid in is accepted in satisfaction of the entire 
 cause of action, to tax his costs, and in case of non-payment 
 within 48 hours, to sign judgment for his costs so taxed. 
 
 See Eng. R. Sup. C, O. XXX., r. 4 ; R. S. 0., o. 50, b. 111. 
 
 "Within 4 days."— An to computation of time, see O. LIT. 
 
 "Tax Aw costs," — In an action for rent, and for damages for breach of covenant 
 in not building a wall, and also claiming an injunction, the defendant paid money 
 into Court to satisfy the claim for rent, and pleaded performance of the covenant 
 by building the ww after the commencement of the action, and paid into Court £1 
 
 CO 
 
272 
 
 JUDICATURE ACT. 
 
 O. XX. VI. 
 B. 4. 
 
 in respect of the breach before action. The {ilaintiff took the money out of Court, 
 confessed "the defence " as to the wall, and claimed costs under O. XX., r. 3 (Ont. 
 O. XVI., r. 7) : — Held, that he was not entitled to such costs, for the statement 
 did not amount to a "defence " within the meaning of that rule : but that he was 
 entitled to the costs of the action under O. LV., Callander v. Hawkins, L. B. 2 
 C. P. D. 592. 
 
 In an action for work, labour and materials the writ claimed a balance of £373, 
 The defendant paid £200 into Court, under the rule, and gave notice in Form 21, 
 Appendix B,that "that sum ia enough to satisfy the plaintiff's claim." The plain- 
 tin took it out under rule 3, but did not give the notice under rule 4, or any other 
 notice. The cause was afterwards referred, under the Common Law Procedure Act, 
 to an arbitrator, " the costs of the cause to abide the event." No pleadings were 
 ever delivered on either side. The arbitrator, after hearing the parties, gave his 
 certificate that the £200 paid into Court was enough to satisfy the plaintiff's claim. 
 The Master having taxed the plaintiff's costs against the defendant up to the time of 
 his taking the monev out of Court, and having from that point taxed the defend- 
 ant's costs against tne plaintiff :- Held, that as the £200 had been paid in generally, 
 and the event of the reference was that the plaintiff recovered nothing bevond the 
 amount paid into Court, the plaintiff was not entitled to any costs, and. the de- 
 fendant was entitled to the costs of the suit from the commencement, Langridge 
 V. Campbell, L. R. 2 Ex. D. 281. 
 
 In an action of damages for breach of covenant, the defendant denied the breach, 
 and also paid money into Court, alleging that it was enough to satisfy the claim. 
 The plaintiff replied joining issue, alleging that the money was not enough, and the 
 issues having been referred to an official referee, he reported that the money paid 
 in was enough to satisfy the claim. The costs were held in the discretion of the 
 Court, and that the discretion in such cases ought to be exercised by allowing the 
 plaintiff his costs of the action up to the time of payment into Court, and allowing 
 the defendant his costs of the action after that time, Buchton v. Higgs^ L. R. 4 
 Ex. D. 174 ; but see Langridge v. Campbell, L. R. 2 Ex. D. 281. 
 
 *^ Sign judgment,"— Vf here the plaintiff's attorney, by mistake, accepted money 
 paid into Court, and signed judgment for costs, the judgment, upon the application 
 of the plaintiff, was set aside upon payment of costs and plaintiff permitted to pro- 
 ceed with his action, Emery v. Webster, 9 Ex. 242. 
 
 '■y 
 
 ORDER XXVII. 
 Discovery and Inspection. 
 
 XXVII. 
 
 I. 
 
 219. 
 
 1. In case of an examination before the trial, or other- 
 wise than at the trial, of an action, if the examining party 
 desires to have such examination taken in shorthand, he shall 
 be entitled to have the examination taken before any examiner 
 residing at the place of examination competent to take the 
 evidence in shortnand, except where the Court or a Judge sees 
 fit to order otherwise. 
 
 Examinatiim at Law. — By R. S. 0., c. 60, s. 156, any party to an action at law, 
 whether plaintiff or defendant, may, at any time after sucn action is at issue, obtain 
 an order for the oral examination, upon oath, before a Judge or an^ other person 
 specially named by the Court or a Judge, of any party adverse in pomt of interest, 
 or in case uf a body corporate of any of the officers of such bo<Iy corporate, touch- 
 ing the matters in Question in the action ; and any party or officer examined may 
 be further examinea on his own behalf or on behalf of the body corporate of whicn 
 he is an officer, in relation to any matter respecting which he has been examined in 
 
DISCOVERY AND INSPECTION. 
 
 273 
 
 chief ; and when one of several plaintiffs has been examined, any other plaintiff or <•• XXFII. 
 defendant united in interest may be examined in his own behalf or on behalf of R. 1. 
 those united with him in interest, to the same extent as the party examined. 
 
 Sub-s. 2. Such explanatory examination shall be proceeded with immediately 
 after the examination in chief, and not at any future period except by leave of the 
 Court or a Judjjfe ; and for the purposes of this section, where the officer of a body 
 corporate has been so examined as aforesaid on behalf of such body corporate, such 
 body corporate shall be deemed to be fully represented by such officer. 
 
 Sec. 159 dispenses with the necessity of an order in some cases. Depositions 
 are to be taken in the form of a narrative, and when completed are to be read over 
 and signed (sec. 164). Depositions taken in shorthand, however may be taken 
 down by question and answer, and need not be read over or signed, 41 Vic. , c. 8, 
 s. 8 (Ont.) Certified copies of the depositions are admissible as evidence, 42 Vic, 
 c. 15, s. 3(0nt.) 
 
 Examination in Chancery. — Any party could examine any other party adverse 
 in point of interest without any order (G. O. Chy. No. 138). A plaintiff could be 
 so examined at any time after answer ; and a defendant at any time after answer 
 or after the time for answering had expired. 
 
 Examination under above Rule. — It is presumed that the above rule does not 
 interfere with the provisions of the Statute 41 Vic, c 8, s. 8, above referred to. 
 
 Time for examination. — As above shewn, the examination could not be had at 
 law until after issue, whereas it might take place in Chancery after answer or the 
 time for answering has expired. For the rule of decision in caj<es of conflict, see 
 notes to sec. 12. Perhaps in this case the periods prescribed in rule 4 of this Order 
 for obtaining an order to produce, might be adopted. 
 
 Procedure to obtain examination. — As the costs of the examination are now pro- 
 \ided for (see the following rule), it is presumed that, except in special cases, no 
 order will be obtained. By the Common Law practice, a copy of the appointment 
 had to be served upon the party and upon his attorney. According to the Chancery 
 practice an appointment was first taken, McMurray v. G. T. R. Co. , 3 Ch. Ch. R. 
 130, and afterwards a subpoena. A copy of the appointment was served upon the 
 solicitor and of the subpoena upon the party, Campbell v. Tucker, 7 P. R. 135. 
 For the rule of decision in case of conflicting practice, see notes to sec. 12. 
 
 Parties to examination.— Rule G of this Order contains provisions as to parties 
 to examination. R. S. O., c. 50, sec. 156 and G. 0. 138, both require that the party 
 to be examined be adverse in interest to the examining party. A defendant whose 
 interest is identical with that of the plaintiff is a party adverse in interest to his 
 co-defendant, and may be examined by his co-defendant, Moore v. Boyd, 8 P. R. 413. 
 
 One of two defendants in an action of ejectment allowed judgment to go by 
 default ; — Held that he was nevertheless liable to be examined under Administra- 
 tion of Justice Act (1873), sec. 24 ; R. S. O., c. 50, sec. 156. Mr. Dalton said :— 
 " The point fixetl by the Legislature after which the order may be obtained is 
 merely a matter of i)rocedure, and is meant to prevent the plaintiff from 'fishing ' 
 in order to frame his next pleading. I do not think the Act intends to restrict the 
 plaintiff to the examination of a party who actively defends a suit," Bacon v. 
 Campbell, 6 P. R. 275. 
 
 The parties in an action for breach of promise not being competent or compella- 
 ble to give evidence the plaintiff was not allowed the costs of the prelimmary ex- 
 amination of the defendant, Woodman v. Blair, 8 P. R. 179. 
 
 Kindersley, V.-C, in Wright r. Wilkin, 6 W. R. 64.3. decided that a special 
 examiner has full power to regulate the examination in resjard to allowing a short- 
 hand writer to be present, or ^r> "dniitting the public as he ] (leases. But Jessel AI. 
 R. in re Western Canada O ? Lands and Works Company L. R. 6 Ch. D. 109, a 
 later case, decided that the office of an examiner is not a public Court and if the 
 presence of the pul)lic is objected to the examiner has no discretion to admit them. 
 Upon the examination of two defendants before a Master, lie, at the request of 
 their solicitor, directed two other defen<lants present tm behalf of the plaintiff, who 
 was too ill to attend, to withdraw, but they refused, the Master thereupon declined 
 to proceed with the examination :— Held, on appeal that the Master should have 
 allowed one defendant to be present on liehalf of the plaintiff if lie was satisfied 
 that this wan re(|nired for the proper representation of the plaintiff's interests, Sive- 
 wright V. Sivewright, 8 P. 11. 81. 
 
 18 
 
I 
 
 *' 
 
 II 'tl 
 
 274 ^- JUDICATURE ACT. 
 
 O. XXVII. A. special examiner has power to exclude witnesses from his room during an 
 
 B. I, examination, and he may exercise such power when the witness is a party to the 
 
 suit, Sadlier v. Smithy 14 U. C. L. J. 30. Held also, that a refusal to comply with 
 
 the ruling of an exammer in not withdrawing when ordered to do so is a contempt 
 
 of Court, Ih. 
 
 A party to a suit having received notice of being examined liy the opposite party 
 is not entitled to call for the production of ^japers in the possession of his adversary 
 in order the better to enable him to give his testimony, Howcutt r. Kees, 2 Gr. 268. 
 
 Service. — An order may be granted for the examination of a party under 36 Vic, 
 c. 8, 8. 24 (R. S. O., c. 50, s. 156), although such party resides beyond the jurisdic- 
 tion of the Court, Morell v. Morrison, 6 P. R. 210. Since this decision express 
 provision has been made by Stat. 41 Vic, c. 8, s. 9 (R. S. O., c. 50, s. 170 (/')), for 
 the examination of parties residing out of Ontario, and in such cases tlie Court may 
 order the examination to be taken at such place and in such manner as may seem 
 just and convenient, and service of the order shall be sufficient if made on the 
 attorney or solicitor of the party, in tlic same manner as other pa))era in the suit 
 are served on the attorney or solicitor, unless the Court or Judge otherwise order. 
 An order for the preliminary examination of a party Residing out of Ontario under 
 this section will not be made exparU; Dewalt r. Hughitt, 7 P. R. 323. 
 
 By Con, Stat. Can., c 79, s. 4, it is i)rovided that, " If in any action or suit 
 depending in any of Her Majesty's Superior Courts of Law or Equity in Canada, it 
 appears to the Court, or when not sitting it appears to any Judge of the Court, 
 that it is proper to compel the personal attendt.nce, at any trial or oiqiiete or 
 examination of witnesses, of any person who may not be within the jurisdiction 
 of the Court in which the action or suit is pending, the Court or a Judge, in their 
 or his discretion, may order that a writ called a subpiBua ad testificamium or a 
 subpojna diiees tecum shall issue in special form commanding such jjerson to attend 
 as a witness at such trial or enquHe of witnesses wherever lie may be in Canada." 
 The term " witness" in this Act includes parties to the cause as well as witnesses 
 ill the ordinary sense of the word. Examination of defendant .ifter answer under 
 (t. O. 138 is an examination of witnesses under this Act, Moffatt v. Prentice, 6 
 P. R. 33. It is not essential to a person being a witness that his evidence should be 
 receivable in any event. Examinations de bene esse are examples to the contrary, 
 Jh. 35. An application for an order under this section is profierly made to the 
 Referee in Chambers, lb. * 
 
 Time for Service.— By G. O. Chy. No. 207, forty-eight hmir.^" notice of the ex- 
 amination is to be given to the opposite party. But this does not apply to a wit- 
 ness who is entitled to reasonable notice according to circumstances, re North 
 Wheal Exmouth Mining Co. 31 Beav. 628. By Com. Law Pro. Act, R. S. O., c. 50, 
 sec. 160, it is provided that the examining party shall cause a copy of the order and 
 appointment (or of the appointment where no order is required) to be served upon the 
 person so to be examined, and upon his attorney, where he has appeared by 
 attorney, at least forty-eight hours before the hour appointed for the examination, 
 and shall pay to the person to be examined the proper charges for conduct money. By 
 rule of Court 135 of Trinity Term 1856, service of all proceedings was to be made 
 before 7 o'clock p.m., except on Saturday, when it was to be made befoie 
 3 o'clock p.m. If made after that time, service was to be deemed as made ( n 
 the following day. Service on a defendant's attorney at his houi-e at 9.30 p.m. on 
 Saturday, of an order and appointment to examine the defendant at 2 o'clock p.m. 
 on the following Tuesday was held to be irregular, the notice not lieing sufficient. 
 Rule of Court 135 applies to service of orders and appointments to examine, and 
 this service must be treated as made on the following Monday, Senn v. Hewitt, 
 8 P. R. 70. 
 
 Objections to Sejince. — The defendant, who resided in Queliec, arrived in Toronto 
 on Saturday, intending to return home on Monday. He was served on the latt?" 
 day with a subpoena to attend for examination on Thursday, and was paid P'. 
 Held, that under these circumstances the bill could not be noted pro confesso for 
 non-attendance ; held also, that it was not necessary for the defendant to move to 
 set aside the subpoena, Bolkow v. Foster, 7 P. R. 388. 
 
 Where examination must take place. — As a rule a suitor has not a right to bring 
 his opponent to Toronto or elsewhere from his residence for the purpose of inter- 
 locutory examination, except upon special grounds. Where, therefore, an order 
 had been made by the Judge's Secretary in Chambers for a plaintiff to attend 
 before a special examiner at Toronto, the venue in the case being laid at 
 
DISCOVERY AND INSPECTION. 
 
 275 
 
 Goderich, and the parties residing there, and plaintiff's solicitor residing there O. XXVII* 
 also, the solicitor for the examining defendant residing in Toronto, such order was R. i, 
 rescinded upon the plaintiff refunding the conduct money paid him, without costs, 
 the defendant being held to have acted in accordance with what appeared to have 
 been very generally understood in Toronto as to the rights of examining parties. 
 The proper practice in a case where special grounds exist is to make an application on 
 notice in Chambers shewing such special grounds. Spragge, V.-C, said: — "The 
 paramount object is certainly to get at the truth ; and where it can be shewn that 
 it cannot be got at, or got at but imperfectly, without a party being brought to 
 Toronto, from whatever cause that may be, other considerations must give way ; 
 but it is going too far to leave it to the will of any suitor to bring any otlier suitor 
 to Toronto merely on the ground that thts examiners in Toronto are more competent 
 than those in the country. ... I am far from laying down a rule that in no 
 case shall a party be summoned to Toronto ; I concur in the propriety of this being 
 done in a case that was put, namely, whore a party desired to examine two or more 
 defendants living in different counties, and where it was material to him that their 
 examinations should follow one another without intermission. And there may be 
 many other cases. I would leave to the secretary a larger discretion. I only desire 
 not to leave it to the will of a litigant to summon his opponent to such place and 
 at such time as he thinks fit, and to leave it to the discretion of the Court or its 
 judicial officer," Gallagher v. Gairdner, 2 Ch. Ch. 4H0. See also Kahn v. Redford, 
 3 Ch. Ch. R. 5.5, which is said to be misreporte<l. The application under the 
 circumstances was refused, but it is understood that the fact that a witness or 
 party can be more efficiently examined in Toronto will weigh with the Court or a 
 Judge on a motion to change the place of examination, Cooper's Digest, 1873, p. 111. 
 Where the bill was filed in Toronto, the venue laid in Goderich, but the defend- 
 ant lived in Hamilton, an application co examine the defendant on his answer 
 before the Master at Goderich was set aside with costs, McDermid v. McDermid, 
 2 Ch. Ch. 372. 
 
 Where the defentlant, who lived in the County of Ilussell, was served with a 
 subpoena requiring his attendance before the Master at Kingston for examination, 
 and he accepted the conduct money without objection, it was held that he could 
 not be compelled to attend, Campbell v. Tucker, 7 P. R. 135. 
 
 Non-attendance. — By G. 0. Chy. 144, it is provided that a person refusing or 
 neglecting to attend at the place ajjpointed for his examination may be punished 
 as for contempt, and the party desiring the examination, in addition to any other 
 remedy to which he may be entitled, may apply to the Court upon motion, either 
 to have the bill taken pro confcsso, or to have it dismissed, according to circum- 
 stances. 
 
 By R. S. 0., c. 50, sec. 162, any party person refusing or neglectmg to attend 
 as above, or refusing to be sworn, or to answer questions properly piit to him, shall 
 be deemed guilty jf a contempt of Court, and proceedings may be forthwith had 
 against him by attachment, and by 41 Vic, c. 8, s. 9 (R. _S. O., c. 50, s. 170 a), a 
 party so acting shall, if a plaintiff, be liable to have his action dismissed for want 
 of prosecution, and, if a defendant, to have his defence struck out and to be placed 
 in the same position as if he had not defended. 
 
 A motion to commit the defendant, or take the bill pro confesso for non-attend- 
 ance of the defendant for examination, pursuant to special order, was refused 
 where the order had not been previously served, the appointment only being served, 
 thA order not even on the solicitor. It is only in cases vvhere the Cfourt finds that . 
 the defendant is in contempt that the plaintiff may hf.ve his bill taken pro confesso, 
 y-iA villa V. McAvilla, 6 P. R. 311. 
 
 Whore a party to be examined refuses to produce books, etc,, as required by 
 the notice to procluce, served with the order to examine under R. S. O., c. 50, s. IGl', 
 or refuses or neglects to attend for examination, or refuses to be sworn, or t.) 
 answer lawful questions, pursuant to such order, proceedings against him by attach- 
 ment must be taken before the Court and not before a Judge in Chambers. Scmble, 
 that the action could not be dismissed under 41 Vic, c. 8, sec. 9 (R. S. O., c. 50, 
 .s. 170 a), for disobedience by the plaintiff of the notice to produce. Merchants' 
 Bank v. Pierson, 8 P. R. 123. The Referee in Chancery, however, had power to 
 commit, see Abell v. Hilts, 6 P. R. 122 ; Wagner v. Mason, P. R. 187. Notwith- 
 standing these powers of summary punishment the order which was usually made 
 in Chancery upon the first default was that the defaulting party should attend at 
 his own expense, and submit to be examined. This order might have been obtained 
 tx parte if costs were not asked, but if costs were asked then notice had to be given. 
 
 ll 
 
276 
 
 JUDICATURE ACT. 
 
 XXVII. 
 
 , t. 
 
 B. S. 0., c. 62, s. 18. — As to a party to any civil nuit bein^ summoned as a. 
 witness by the opposite party, only applies to calling the opposite party as a wit- 
 ness " at the hearing or trial," and therefore non-attendance to be cross-examined 
 on his answer forms no ground for taking the bill pro confeaao, Vardon v. Vardon, 
 7 P. R. 436. 
 
 Subject matter of examination. — Examination of parties is a substitute for the 
 former x*^'- ■'je of administering interrogatories witn the pleadings, and any ques- 
 tion, th ; vhich would have been proper as an interrogatory is proper upon an 
 ex'ti-.i) ■'■',. ^^'lestions which could oe put at the trial of an action would be 
 proper .? AUhusen r. Labouchere, L. R. 3 Q. B. D. 654, as to questions 
 which are directed merely to the credit of the party. 
 
 A ir.'vrried woman cannot be compelled to disclose the nature of her separate 
 estate upon ' ■ r exa ■" ' *^^ion, not as a judgment debtor, but under R. S. O., c. 50, 
 8. 156 ; StanJi, J. Bau... c. Me<^Juaig, 7 P. R. 356. 
 
 The defendant employed the plaintiff as manager of his business, under a written 
 agreement, at a salary and a commission on the gross amount of sales. Disputes 
 having arisen, the defendant summarily dismissed the plaintiff. The plaintiff com- 
 menced an action for wrongful dismissal. The defendant, by his defence, alleged 
 specific acts of misconduct against the plaintiff, and also alleged, in general terms, 
 other acts of misconduct justifying the dismissal. The plaintiff exhibited four 
 interrogatories, of which the substance was to ask the defendant to specify the acts 
 of misconduct on which he relied, and a fifth interrogatory asking for the total 
 amount of the gross proceeds of sales during the period for which the plaintiff 
 claimed remuneration. The defendant refused to answer the first four interroga- 
 tories on the ground that they related to the case of the defendant, not of the 
 plaintiff, and the fifth interrogatory, on the ground that as the right to an account 
 of commission was disputed, the defendant was not bound to give such an account 
 at that stage of the action : — Held, by Bacon, V. C, and by the Court of Appeal, 
 that the interrogatories must be answered, Saunders v. Jones, L. R. 7 Oh. D. 435. 
 
 Where the plaintiffs sued as administrators to recover possession of certain here- 
 ditaments for breach of a covenant contained in a lease, and the defendant alleged 
 that the intestate verbally consented to the breach of the covenant, it was held that 
 the plaintiffs were entitled to interrogate the defendant as to when the consent was 
 given, and as to the conversation which took place, but that they were not entitled to 
 interrogate him as to the jiersons in whose presence the verbal consent was given. 
 Cotton, L. J., said : " The plaintiff is entitled to a discovery of the facts upon 
 which the defendant relies to establish his case, but not of the evidence which it is 
 proposed to adduce. . . . The defendant is not bound to give the names of 
 the witnesses whom he intends to call at the trial," Eade v. Jacobs, L. R. 3 Ex. 
 D. 335. 
 
 The defendant is entitled to a discovery of what the plaintiff's case is, and of 
 all matters which destroy it, but not of the evidence by which he intends to sup- 
 port it, Ashley v. Taylor, 37 L. T. 522 ; see also Commissioners, etc., of London i\ 
 Glasse, L. R. 15 Eq. 302. 
 
 A party who applies to strike out interrogatories must, unless they are altogether 
 an abuse of the practice of the Court, specify those to which he objects. Questions 
 which go merely to the credit of the witness, and might be put in cross-examination, 
 cannot be put as interrogatories to a party, and are as such irrelevant. Where the 
 answer to an interrogatory might tend to criminate the person interrogated, he may 
 refuse to answer, but the interrogatory is not therefore objectionable, Allhusen v. 
 Labouchere, L. R. 3 Q. B. D. 654. 
 
 In a proceeding charging that the mother, in concert with the other two defen- 
 dants, had abducted and kept in concealment the children of the plaintiff, the two 
 defendants refused to answer certain questions put to them resuecting the children, 
 on the ground that their answers would tend to render them liable to a criminal 
 prosecution under the Act respecting offences against the person, it was held that, 
 under these circumstances, the defendants were not bound to answer, Keith v. 
 Lynch, 19 Gr. 497 ; and see Mansfield v. Childerhouse, L. R. 4 Ch. D. 82 ; Eade 
 V. Jacobs, L. R. 3 Ex. D. 335 ; Lyon v. Tweddell, L. R. 13 Ch. D. 375 ; Johns v. 
 James, L. R. 13 Ch. D. 370. 
 
 Depositions in evidence. — By R. S. O., c. 50, s. 165, office copies of de^Jositions 
 taken in a cause, as above mentioned, may be given out, and the examinations and 
 depositions certified under the hand of the Judge or other officer taking the same, 
 
DISCOVERY AND INSPECTION. 
 
 277 
 
 or a copy thereof certified under the hand of the clerk in whose office they are kept O. XX VII. 
 8h<^ll, without proof of signature, be received and read in evidence, saving all past K. 1. 
 «xceptions. 
 
 By 42 Vic, c. 15, s. 9, it is further provided that copies of such examinations 
 and depositions, not necessarily office copies certified under the hand of the Jud^e 
 or other person taking the same, shall, without proof of signature, be received and read 
 in evidence, and by 41 Vic, c 8, s. 8, it is provided that copies of depositions taken 
 in shorthand, certified by the person taking the same to be correct, shall, for all 
 purposes, have the same effect as the original depositions in ordinary cases. By 
 G. 0. Chy., No. 146, where the examining party uses any portion of the examina- 
 tion taken as provided by previous orders, the party sigainst whom it is used may 
 put in the entire evidence so taken. ' See rule 21 of this Order. 
 
 The examination of a defendant after answer, or after the time for answering 
 has expired, is a sub.'ititute for the discovery by answer, and a plaintiff can at the 
 hearing read such examination, or parts of it, in the same manner as a defendant's 
 answer or passages from it could be used against him at the hearing. For this pur- 
 pose it is not necessary to examine the defendant at the examination of witnesses, 
 Proctor V. Grant, 9 Gr. 26. 
 
 Where a defendant has been cross-examined on his answer he has a right in all 
 future proceedings in the case to make the same use thereof as under the former 
 practice could be made of the answer to the interrogatories in a bill ; and where a 
 defendant, after having been so cross-examined, died, and the cause was revived 
 against his real representatives, the defendants were allowed at the hearing to read 
 such cross-examination in answer to the statements of the bill, thus rendering it 
 necessary that such statements should be proved by two witnesses, or if by one wit- 
 ness only, cor."obor;ited by attendant circumstances, Powell v. Lea, 20 Gr. 621. 
 
 On motion for a dec^'ee a plaintiff could always read the answer of one defendant 
 against another by giving notice of his intention to do so, and in like manner he 
 could read the examination of one defendant against another. But the plaintiff 
 could read these only by treating them as .affidavits filed in the cause, and the de- 
 fendant against whom they were to be read could file affidavits in answer to them 
 just as he aould to any affidavits filed in behalf of the plaintiff. Of course this 
 was before the passing of G. O. Chy. No. 270, which limits the class of cases which 
 may be heard on motion for decree, Moore v, Boyd, 8 P. R. 415. 
 
 The examination of a defendant whose interest, being identical with that of 
 the plaintiff, is adverse to that of his co-defendant, may be read at the hearing 
 against the plaintiff if the plaintiff's solicitor has been present at the examination, lb. 
 
 Re-examination. — An ex parte order will not be granted for the re-examination of 
 a party under sec. 24 of Administration of Justice Act, 1873, and special circum- 
 stances must be shewn. Laird r. Stanley, 6 P. R. 322. f 
 
 An order will not be granted except under the most special circumstances, Thor- 
 bum V. Brown, 8 P. R. 114. 
 
 Neither can there be more than one examination of a party under G. 0. Chy. 
 No. 138, Paxton v. Jones, 6 P. R. 135. 
 
 Examination on affidavit. — By G. O. Chy. No. 268, any person who has made 
 an affidavit to be used or which shall be used on any proceeding before the Court, 
 shall be bound to attend for the purpose of being cross-examined, on being sub- 
 poened for that purpose. 
 
 In Paxton v. Jones, 6 P. R. 135, itjwas decided that an affidavit on production is 
 not within the provisions of this order, and therefore a party making such an affi- 
 davit does not become liable to cross-examination upon it except so far as this can 
 be had by examination for discovery in the cause. This decision was however 
 overruled inDobson v. Dobson, 7 P. R. 256, where it was decided that a defendant 
 can be examined upon his affidavit on production after he has been examined on 
 his answer, but semble where such a course is unnecessary and there is no good 
 reason for not waiting for the affidavit on production, the costs of only one exami- 
 nation will be allowed. 
 
 In a very recent case upon appeal from the Referee the Chancellor held that an 
 appointment and subpoena might issue for the examination of a surety in an appeal 
 bond upon his affidavit of justification, Hughes v. Hughes, 1 Can. L. T. 189. The 
 feeling among Chancery practitioners, however, has remained in favour of the de- 
 cision in Paxton v. Jones, and the question may still arise for determination. The 
 
rA 
 
 m 
 
 I , 
 
 I 
 
 278 
 
 XXVII. 
 
 1. 
 
 JUDICATURE ACT. 
 
 present rules leave the matter uncertain. O. XXVII. , r. 8, provides that when an 
 officer of a corporation makes an affidavit on production he shall be subject to 
 cross-examinat'.on, and O. XXXII., r. 2, provides that any person having made an 
 affidavit to be used or which Khali be used on any motion, petition, or other proceed- 
 ing before c?" Court, shall be bound to attend for cross-examination. 
 
 CorpomttoTM.— Originally it was necessary to make the officer of the corporation, 
 whom it was desired to examine, a party to the bill, and if the corporation was 
 plaintiff it was necessary for the defendant to file a cross-bill making the officer a 
 party. This practice was fcuperaeded by G. O. Chy., Nos. 63 and 64, and R. S. O. 
 c. .50, s. 156, which provide that any officer of a corporation may be examined 
 by the opposite party m the same manner as a party may be examined, see Lindsay 
 Petroleum Co. v. Pardee, 6 P. R. 140. 
 
 The chief engineer of a railway company is an "officer " of the company within 
 R. S. O., c. 50, s. 156, Oakley i\ Toronto, Grey & Bruce Railway Co., 6 P. 11. 
 253, but the tie inspector of a railway company is not an ' * officer " within this sec- 
 tion, Dalziel v. Grand Trunk Railway Co.. 6 P. R. 307. When the bill alleged 
 that the contract in question was entered into by the agent of the bank on its be- 
 half, an order was made for his examination. Consolidated Bank v. Neilon, 7 P. 
 R. 251. 
 
 Party out of jurisdiction. — An original bill was filed by a foreign republic, and 
 a cross bill was tiled by one of the defendants against the republic and one of it:* 
 officers, made a party for the purpose of discovery :— Held, that the Court would 
 not order proceedings in the origmal suit to be stayed until the officer of the re- 
 public had appeared, James, L. J., said : — " In this Court, with regard to persons 
 in this country, it is open to a plaintiff in a cross suit to select any person he thinks 
 fit for the purpose of discovery, and if that person is subject to the process of the 
 Court, the plaintiff can use the process of the Court for the purpose of extracting 
 from him, the defendant so selected, whatever can be got from him. But if the 
 plaintiff chooses to select somebody whom he cannot get to appear, he does not 
 thereby obtain a right to stop indefinitely the suit of the original plaintiff. He is 
 at liberty to use the process of the Court, and if he can enforce discovery he is at 
 liberty to do so. That is all the Court can do for a plaintiff in such a position, 
 except that the Court can, for the purpose of dojng justice, say to the original 
 plaintiff, ' We will stop your proceedings until you have named some proper perso n 
 to give the discovery which is sought by the defendant from you. That is the 
 form of the order which was given at Common Law, and it is the form of the order 
 given at this Court, and is the form of the order which is prescribed by the rules 
 under the Judicature Act. I believe there is no authority whatever, either with 
 regard to an English corporation or plaintiff, or a foreign corporation or plaintiff, 
 for staying the proceedings in the suit until a defendant selected by the plaintiff in 
 a cross suit has entered an appearance in the cross suit," Republic of Costa Rica v. 
 Erlanger, L. R. 1 Ch. D. 171 ; see also Wilson v. Church, L. R. Ch. D. 552. 
 
 i 
 
 !!■ 
 
 I i 
 
 h 
 
 I 
 
 i& 
 
 •■ i 
 
 1 
 
 Am 
 
 I 
 
 330. 
 
 2. The costs of every examination of parties or of officers of 
 corporations before the trial, or otherwise than at the trial of an 
 action, as authorized by the present practice of the respective 
 Courts whose jurisdiction is vested in the High Court, shall be 
 costs in the cause, but the Court or Judge in adjusting the 
 costs of the action shall at the instance of any party inquire, 
 or cause inquiry to be made, into the propriety of having 
 made such examination ; and if it is the opinion • 1 the Court or 
 Judge, or the taxing master, as the case may be, that such 
 examination has been had unreasonably, vexatiously, or at 
 unnecessary length, the costs occasioned by the examination 
 shall be borne in whole or in part by the party in fault. 
 The taxing master may make such inquiry without any direction. 
 
DISCOVEttY AND INSPECTION. 
 
 279 
 
 3. It shall be lawful for the Court or a Judge at any time «• xxvii. 
 
 during the pendency of any action or proceeding, to order thj *• *• 
 l»roduction by any party thereto, upon oath, of such of the^ 
 documents in his possession or power relating to any matter in 
 question in such action or proceeding, as the Court or Judge 
 shall think right ; and the Court may deal with such docu- 
 ments, when produced, in such manner as shall appear just. 
 
 See Eng. II. Sup. C, O. XXXI., r. 11 ; R. S. O., c. 50, ss. 169, 175. 
 
 A plaintiff after delivering a statement of claim i.s not, as a general rule, 
 entitled under this rule to an order for discovery of documents before a statement 
 (if defence is delivered, because until that happens, it is impossible to say what 
 the " matter in question in the action " is, Hancock v. Guerin, L. R. 4 Ex. D. '6 ; 
 and see Cashin v. Cradock, L. R. 2 Ch. D. 140 ; Republic of Costa Rica v. 
 Strousbey, L. R. 11 Ch. D. 323. 
 
 4. Any party may, after the close of the pleadings, (or when 
 the application is on behalf of a plaintiti' after the time for 
 delivering the defence of any party to the action has expired,) 
 obtain an order of course upon precipe, directing the adverse 
 ])arty within 10 days after the service thereof , to make discovery 
 on oath of the documents which are or have been in his possession 
 or power, relating to any matters in question in the action ; 
 and to prDduce and deposit the same with the proper officer for 
 the usual purposes, and such party shall make discovery and 
 produce and deposit the documents accordingly, without 
 further notice. 
 
 ^■i;; 
 
 See Eng. R. Sup. C, O. XXXI., r. 12 ; R. S. 
 Chy. No. 134. 
 
 O., c. 50, ss. 169, 170; G. O. 
 
 ^^ Ann 23a9'<^."— This rule gives greater power as to compelling production than 
 the former practice either at Law or in Chancery gave, for now " any party " may 
 obtain an order directing ' ' any other party " to make discovery, etc. At Common 
 Law, production coulA only be obtained from or the inspection of documents 
 ordered against the opposite party, see 11. S. O., c. 50, ss. Iti'j, 170. In Chancery a 
 defendant was not entitled before decree to call for production by a co-defendant 
 or to inspect documents iiroduced by him, Attorney-General v. Clapham, 10 Ha. 
 app. 68 ; Wynne v. Huniberston, 5 Jur. N. S. 5 ; Bartley v. Bartley, 16 Jur. 
 1062 • after decree, however, a defendant could compel production from a co-defend- 
 ant, Hart r. Monteiiore, 10 W.R. 97 As to power to examine a co-defendant, see 
 notes to Order XXVII., r. 1. 
 
 ^^ After the service tAercof."— Service may be made upon the solicitor of the party 
 required to produce, O. XXVII., r. 19. 
 
 Production of documents \s a, matter of right in the party claiming it; not a 
 matter in the discretion of the Judge, Anderson v. Bank of British Columbia, L. 
 R. 2 Ch. D. 644 ; Bustros v. White, L. R. 1 Q. B. D. 423. 
 
 Particular parties — The Crown. — In a petition of ri^ht the Crown is entitled 
 against the suppliant to an order for discovery of documents, Tomline v. The 
 Queen, L. R. 4 Ex. D. 252. See R. S. 0., c. 59, s. 10. 
 
 Parftcu/rtJ'paj'^tes—CM'porati'ons.— It has heretofore been necessary to apply in 
 Chambers for a special order when production was sought from a corporation. 
 
 hi 
 
280 
 
 XXVII. 
 
 .4. 
 
 JUDICATURE ACT. 
 
 Lindsay Petroleum Co. v. Pardee, 6 P. R. 140. Perhaps the roaaon for the prac- 
 tice, however, no longer exists, as rule 7 of this Order may be taken as supplement- 
 ary. And see as to corporations, Ranger v. G. W. R. Co., 4 D. & J. 74; Re- 
 public of Liberia v. Imperial Bank, L. R. 16 Eq, 179 ; Law v. London Indisput- 
 able Policy Co., 10 Ha. app. 20; Attorney-General v. East Dereham Com Ex- 
 change Co., 5 W. R. 486 ; Attorney-General v. Mercer's Co., 9 W. R. 83 ; Cook r. 
 Oceanic Steam Co., W. N. (1875) 220. 
 
 Particular parties — Lunatics— MaiTied Women. — When a plaintiff of unsound 
 mind sues by a next friend, the defendant is entitled to an afhdavit of documents 
 made by the next friend or by some one acquainted with the facta, Hig^'inson v. 
 Hall, L. R. 10 Ch. D. 235 ; but the next friend of a married women cannot be com- 
 l)elled to make an affidavit. Brown v. Capron, 6 P. R. 203. 
 
 An affidavit must he made although no documents. — The party called unon to pro- 
 duce must make the affidavit, though he insists that he cannot be compelled to pro- 
 duce the documents, Rumbolil v. Forteath, 3 K. & J. 44 ; Lazarus v. Mosely, 5 Jur. 
 N. S. 1119 ; Nicholl v. Jones, 13 W. R. 451 ; and see Manby v. Bewicke, 8 D. M. 
 & G. 55 ; Quinn v. Ratcliffe, 9 W. R. 65 ; Hanslip v. Kitton, 1 D. J. & S. 440. 
 
 What must be produced. — Whether a document woxxldbe evidence or not for the 
 party claiming inspection, is not a test of the right to it. Everything which will 
 throw light on the case is prima facie subject to inspection, Hutchinson v. Glover, 
 L. R. 1 Q. B. D. 138. 
 
 The Court will not act merely upon an allegation by a party seeking to protect 
 documents from production, that they are not material, if it api)oar from their 
 nature, or otherwise, that they may afford material assistance to the party seeking 
 production in establishing his case. Erase v. Home Insurance Co., 6 P. K. 45 ; but 
 see Bewicke v. Graham, W. N. (1881) 44, 45. The plaintiff's case, for the [lurpose of 
 discovery, consists of everjrthing necessary to obtain a decree including what may 
 be required to answer the defence set up. The Western Canada Oil Co. v. Walker, 
 6 P. R. 191. But before decree no discovery will be ordered which ajtpears to be 
 immaterial to the question to be tried at the hearing. Merchants' Bank •;•. Tisdale, 
 6 P. R. 51. Inspection was ordered of an agreement of comp)nmise relating to the 
 subject matter of the suit between defendant and a third party, Hutchinson v. Glover, 
 L. R. 1 Q. B. D. 138. 
 
 Where the documents are in a foreign country, the party required to i)roduce 
 must shew not only that it would be difficult to obtain them, but that he has tried 
 and failed, Mertens v. Haigh, 11 W. R. 792 ; if the party is required to produce 
 or obtain information as to documents not in his possession, he is entitled to have 
 the costs of so doing first tendered to him, Bethel! v. Casson, 12 W. R. 200. 
 
 Documents formerly in the possession of the defendant, and filed by him in the 
 Master's office in another suit, were directed to be produced by the defendant upon 
 his being indemnified against the expense of obtaining them out of Court, Hamelyn 
 V. Whyte, 6 Pr. R. 143. 
 
 In a suit between defendant and a third party, with reference to the same 
 subject matter, had been compromised. The agreement of compromise was ordered 
 to be produced, Hutchinson v. Glover, W. N. (1875) 247. 
 
 Privilege — General rule. — The general rules as to privilege are applicable to 
 the protection of documents from discovery, Wadeer v. East India Co., 2 Jur. N. S. 
 407 ; Clegg v. Edmonson, 22 Beav. 125. 
 
 Privilege — It must he claimed.— Where a party admits documents to be in his 
 possession he is prima facit bound to produce them, or assign a sufficient reason 
 why he should not. Green v. Aimey, 2 Ch. Ch. R. 138 ; an affidavit as to documents, 
 by a party who objects to produce them, is insufficient if it merely states " that 
 they are privileged ;" it ought to state and verify the facts upon which the objection 
 is grounded, Gardner v. Irwin, L. R. 4 Ex. D. 49. 
 
 Privilege — Former action. — Inspection was refused of correspondence between 
 the plaintiff and a third party in another action, which would have been 
 privileged in that action. The fact that such action had terminated did not deprive 
 the correspondence of its privileged character, Bullock v. Corry, L.' R. 3 Q. B. D. 
 356. 
 
 Privilege— Solicitor and client. — It is not now necessary., as it formerly was, for 
 the purpose of {privilege and protection, that the communication should be made 
 either during or relating to an actual, or even to an expected, litigation. It is 
 
DISCOVERY AND INSPECTION. 
 
 281 
 
 sufficient if they pass as professional communications in a professional character, Ot XXVll. 
 per Sir 11. T. Kindersley, in Lawrence v. Campbell, 28 L. J. Chy. 780 ; 4 Drew, b. 4. 
 490. This language was quoted with approval in Minet v. Morgan, L. R. 8 Chy. 
 App. 361. The case of McDonald v. Putnam, 11 Gr. 258, which followed the older 
 rule, must now be considered overri'I:; J by Hamelyn v. Whyte, (i P. K. 14.3. The 
 rule applies to communications with former solicitor, Marriott v. Anchor Rever- 
 sionary Co., 3 Giff. 304 ; Wilson v. Brunskill, 2 Ch. Ch. R. 147. 
 
 Communications with a solicitor out of the jurisdiction, or the solicitor's clerk, 
 or an accountaTit or skilled person employed by the solicitor, are witliin the prin- 
 ciple, Lawrence r. Campbell, 4 Drew. 485; Steele v. Stewart, 1 Ph. 471 ; Churtun 
 V, Frewen, 2 Dr. & S. 3!)0 ; Hooper v, Gumm, 10 W. R. (544. The privilege does not 
 extend to communications made to the solicitor, but not in his chaiiicter of solicitor, 
 Thomas v. llawlings, 27 Beav. 140 ; and see Hampson v. Hami)son, 2(j L. J. Chy. 
 612. Privilege does not exterl to information which the solicitor has derived from 
 collateral sources, not directly from the client, Marsh v. Keith, 1 Dr. & S. 34l' ; 
 Ford V. Tennant, 32 Beav. 162 ; re Land Credit Society, 1-5 W. R. 703. 
 
 The privilege is that of the client and not of the solicitor. If, therefore, the 
 client does not object to the production the solicitor cannot, re Cameron's Coalbrooke 
 Railway Co., 25 Beav. 1. 
 
 F(yrm of affidavit claiming prinUegc — ."I object to produce the documents set 
 forth in the seconil part of the first schedule, on the ground that, being communi- 
 cations between solicitor and client, they are privileged," is sufficient, Hamelyn r. 
 Whyte, 6 P. R. 142. So also is the following: — " A correspondence between the 
 plaintiff and his i)redece88ors in title, on the one hand, and his and their respective 
 solicitors, from time to time, on the other, "Minet v. Morgan, L. R. 8 Ch. App. 361. 
 
 Privilege, Principal and Agent. — Communications with a professional or even an 
 unprofessional agent in anticip.ation of the litigation, and with a view to the prose- 
 cution of a claim, or a defence against a claim to the matter in dispute, being con- 
 fidential are privileged, per Stuart, V.-C, in Ross v. Gilibs, L. R. 8, Eq. 522. See 
 this rule applied in the case of the report of a medical officer, Cossey v. L. B. & S. 
 Coast R. Co., L. R. 5 C. P. 146 ; and in the case of opinions of engmeers as to the 
 validity of a patent, Toronto Gravel Road Co., Taylor, 6 P. R. 227. 
 
 Professional opinions given partly for the benefit of the party requiring produc- 
 tion are not privileged, Reynolds v. Godlee, 4 K. & J. 88 ; Talbot t. Marshfield, 
 13 W. R. 885 ; Wynne v. Humberstone, 27 Beav. 421. 
 
 Privilege. — Private inemoranda written by the opposite party for his i>l ip sure or 
 convenience will not be ordered to be produced, Mattoch v. Heath, W T. (1875) 
 201. 
 
 Privilege— Documents relating to party's own case only. — Documents which have 
 no bearing on the issue to be tried, or which relate exclusively to the defendant's 
 own title, or to the evidence by which his case is to be established, need not be pro- 
 duced. Daw V. Eley, 2 H. & M. 725 ; Ingilby v. Shafto, 33 Beav. 31 ; and see Turney 
 V. Bayley, 12 W. R. 633 ; Mansel o. Feeny, 2 J. & H. 323 ; De la Rue v. Dickenson, 
 3 K. & J. 388; Gandee v. Stansfield, 4 D. & J. 1 ; Peile v. Stoddart, 1 Mac. & G. 
 192 ; Kay v. Hargreaves, 14 L. T. N. S. 281 ; Turner v. Burkenshaw, 11 W. R. 
 «51. 
 
 The party refusing to produce must shew that the documents relate to his title, 
 and do not relate to that of the opposite party, Clegg v. Edmondson, 3 Jur. N. S. 2{)9 ; 
 Lind V, Isle of Wight Ferry Co. , 8 W. R. 540 ; Bi8ho[) of Winchester v. Bowker, 
 29 Beav. 479 ; Felkin v. Lord Herbert, 9 W. R. 756 ; Bolton v. Corporation of Liver- 
 pool, 1 M. &. K. 88 ; JenHyn v. Bushby, 14 W. R. 531. 
 
 A defendant cannot refuse production merely on the ground that if the jjlain- 
 tiff's claim is unfounded he has no interest in the documents, Gresley v. Mousley, 
 2 K. & J. 288 ; and see Rumbold v. Forteath, 3 K. & J. 44 ; Ferrier v. Atwool, 14 
 W. R. 597 ; Bugden v. South, 26 L. J. Ch. 425 ; Bates v. Master of Christ's College, 
 26 L. J. Ch. 449 ; Quin v. Ratcliff, 9 W. R. 65 ; but see Robson v. Flight, 33 Beav. 
 268. 
 
 The plaintiff's case, for the purpose of discovery, consists of everything neces- 
 sary to obtain a decree, including what may be required to answer the defence set 
 up, The Western of Canada Oil Company v. Walker, 6 P. R. 191. 
 
 In Bewicke v. Graham, W. N. (1881) 44, 45, the following words were in the 
 defendant's affidavit on production : " We have in our possession or power 
 
: ! 
 i 
 
 '.. 
 
 I ^1' 
 
 282 
 
 O. XXVII. 
 B. 4. 
 
 
 JUDICATURE ACT. 
 
 certain documenta, numbered 101 to 110 inclusive, which are tied up in a bundle, 
 marked with the letter A, and initialed by tlte deponent, Charlett ulnnville ; the 
 naid documentH relate Holely to the ciiHe of the said defendants, and not to the uase 
 of the plaintiff, nor <lo tiiey tend to wnjiport it, and they do not, to the best of our 
 knowledge, information and belief, contain anythint; iuipeachin;,' the civHe of the 
 Haid defendants, wherefore we object to produce the same, and say that they are 
 |)rivilej,'ed from production." It wa^ contended for the plaintiff that although, 
 accordin},' to Taylor *■. Batten, 4 t^. B. Div. 85, the documentM were HuHiciently 
 (leHcribed for identity, and the plaintiff was bound to take "ihe affidavit as true, 
 Htill the |)laintiff had a right to inspect and see if the documents were such as to be 
 privileged, and that what was stated in the affiiilavit was not sufficient to protect 
 them : — Held, that the deHCvii)tion must be taken to be true, and inspection was 
 refused. 
 
 Pvifileijc. — Other pcr!^<>ns interested in documents. — Trustees will not be ordered, 
 in the absence of the cestui que trust, to produce title deeds unless the trustee suffi- 
 ciently represents him. Few v. Guppy, 13 Beav. 457 ; Fraser v. Home Insurp 
 Ctmii)any, fi 1*. 11. 45. A person in business cannot refuse to produce his bo( 
 account merely because his customers have an interest in them, and might b 
 judiced by the state of their account being disclosed. Brown v. Perkins, 2 Ha. i, 
 Ord V. I iiwcett, 19 L. J. Chy. 487 ; Telford v. Kuskin, 1 Dr. & Sm. 148 ; Fraser 
 z; Home Insurance Company, 6 P. R. 45. 
 
 A party must produce relevaiit documents in the poaseasion of his solicitor or 
 agent, and cannot refuse because the solicitor says they are not relevant, Manby v. 
 Bewicke, 8 D. 1ST. & G. 47(' ; Mcintosh v. (xreat Western Railway Company, 4 D. 
 & Sm. 544 ; nor can the solicitor refuse because he claims his ordinary lien, Lockett 
 r. Gary, 10 Jur. N. S. 144 ; Goodchap v. Weaving, 16 Jur. 580 ; Hope v. Lid- 
 dell, 7 D. >I. & G. 331 ; Hercy v. Ferrers, 4 Beav. 17 ; re Cameron's Coalbrook 
 Railway Company, 25 Beav. 1 ; but see re Gregson, 2(i Beav. 87 ; North v. Huber, 
 29 Beav. 437. 
 
 If the documents are the agent's private property they need not be produced, 
 Colyer r. Colyer, 9 W. R. 452. 
 
 Documents in the possession of a stranger prior to the institution of the suit, 
 cannot be ordered to be produced in his absence, Burbridge v. Robinson, 2 Mac. & 
 G. 244. 
 
 « Where a person not a party to the suit, has a joint interest in the documents, 
 they will be protected, but full information must be given by the affidavit, 
 Edmonds ;•. Foley, 30 Beav. 282 ; Bayley v. Cass, 10 W. R. 370 ; l^'ord v. Dolphin, 
 1 Drew. 222; Lord Eglinton v. Lamb, 14 W. R. 170; Peimey v. Goode, 1 Drew. 
 474 ; Reid v. Langlois, 1 Mac. & G. 027. Even if tlie Court should hold that there 
 are grounds for not ordering production of the documents, on account of a third 
 person's interest therein, still the party must give all the information in his power 
 as to such documents as he has partial possession of, and make discovery of their 
 contents so far as they are material, with as much particularity as if he was 
 answering interrogatories under the former practice, Taylor v. Rimdell, Cr. & Ph. 
 104 ; Bovill v. Cowan, 15 W. R. 008 ; Clinch v. Financial Corporation, L. R. 2 Eq. 
 271 ; Fraser v. Home Ins. Co. P. R. 45. 
 
 A suit was brought by a married woman to which her husband was joined as a 
 defendant. The plaintiff filed the usual affidavit on production of documents, 
 producing all the documents in her possession relating to the matter in question in 
 the suit. The defendant applied to compel further production, viz. of documents 
 which it appeared the defendant, the plaintiff's husband, had in his possession. It 
 was alleged that he held these documents for the benefit of the plaintiff, and that 
 it was intended to use them at the hearing : — Held, (1) that the possession of the 
 husband could not be said_ to be the posseasicm of the wife ; (3) that a feme covert 
 plaintiff, whose husband is a defendant, is not bound to procure production of 
 documents by her husband for the benefit of his co-defendants; (4) that the rule 
 respecting the obtaining of discovery from a co-defendant protected the plaintiflf's 
 husband from liability to examination by his co-defendant. Brown v. Capron, 6 
 P. R. 203. 
 
 The defendant objected to produce certain documents, on the ground that they 
 were in the possession of a third_ party, to whom the defendants had assigned all 
 their estate for the benefit of their creditors. The assignee had realized the estate, 
 and distributed the proceeds amongst the creditors :— Held, no excuse for non-pro- 
 duction, and a better affidavit was ordered, British America Assurance Co. v. 
 Wilkinson, 6 P. R. 268. 
 
ITT 
 
 DISCOVERY AND INSPECTION. 
 
 283 
 
 Whevo a party hail in his possession letters written to him by a person not a O. XXVII* 
 party to thu suit, which were admitted tr ' > nateriul, he was compelled to produce r, 4. 
 them, though they were marked "private uud cintidentiaL" and the vendor ob- 
 jected to their production, Hopkinson v. Lord Burghley, L. R. 2 Oh. App. 447 ; 
 and seo VViman v. Bradstreet, 2 Oh. Ch. R. 'I,' ; Penkethman r. White, 2 W. R. 
 380 ; liOO ('. Hammerton, 12 W, R. 975. In such cases an undertaking must be given 
 not to use the letters for any collateral purpose, Richardson v. Hastings, 7 Beav. 
 3.54 ; Hopkinson v. Lord Burgliley, L. R. 2 Ch. App. 447 ; and generally where a 
 party obtains an order for i)ro(luction and inspection of documents he does so upon 
 an implied ii .derstanding not to make public any information so obtained, or to 
 communicate such information to persons not parties to the suit, Williams 1; Prince 
 of Wales Assurance Com|)any, 23 Beav. 338 ; see Reynolds v. Godlee, 4 K. & J. 
 88 ; Enthoven c. Cobb, 5 I). & Sm. 595 ; 2 D. M. & G. «32; Bowen v. Pearson, 11 
 W, U. 819. 
 
 In an afhdavit the reason given for non-production was: "That divers per- 
 sons not parties to this suit are interested therein respectively, and we have, to 
 the best of our knowledge, information, and belief, particularly set forth, under the 
 said heading, the nature of such interest, and the names and conditions in life of 
 such persons respectively." The report of the case does not disclose the nature of 
 the interest alleged in the other jwrsons. On appeal James, L. J., said :— "The 
 documents are not protected. If documents aru in the joint possession of the de- 
 fendant and a person not before the Court their production will not be ordered, 
 because the Court will not order the defendants to do what they have no power to 
 do ; but it is no ground for resisting production that a person not before the Court 
 has an interest in the documents, " Kettlewell v. Barstow, L. 11. 7 Ch. App. 686 ; 
 see comments upon this case in Fraser v. Home Insurance Company, 6 P. It. 45. 
 
 Co-defemlants.—Tjottera passing between co-defendants are not privileged, Betts 
 I). Menzies, 20 L. J. Chy. 528. iTnder an order to produce, taken out by one de- 
 fendant, other defendants have no right to compel production or discovery, Sey- 
 piour ?'. Longworth, 3 Ch. Ch. R. 112. As to obtaining pi-oduction from co-de- 
 fendants, see ante under " any parti/." 
 
 Documents tending to criminate are privileged, see Waters i-. Earl of Shaftesbury, 
 14 W. R. 259 ; Howe v. Kernan, 30 Beav. 547 ; but it is not the practice to allow 
 either of the Statutes of Elizabeth to be an excuse for resisting discovery, Bunn v. 
 Bunn, 12 W. R. 561. Where fraud is charged no privilege can be claimed for 
 documents relating to the allegeil fraud, Feaver v, Williams, 11 Jur. N. S. 902; 
 Phillips V. Holmes, 15 W. R. 578 ; but see Charlton v. Coombes, 4 Giff. 372 ; 
 Mornmgton v. Mornington, 2 .J. & H. 697 ; and see as to action for penalties, 
 Society of Apothecaries v. Nottingham, W. N. (1875) 259. 
 
 Place of production. — Under an order for production in Chancery the docu- 
 ments are to be deposited in the office of the Clerk of Records and Writs, or of the 
 Deputy -Registrar in the County ; but production is allowed at the party's place of 
 business; if he states that the documents are in constant and necessary use in his 
 business, Grane v. Cooper, 4 M. & C. 263 ; and see Mertens v. Haigh, Johns. 735 ; 
 but it is not sufficient to shew that the books, etc., are in constant use, without 
 also stating that they cannot be removed without inconvenience. Hooper r. Gumm, 
 2 J. & H. 602 ; Hamelyn v, Whyte, 6 P. R. 143 ; and production is frequently 
 ordered at the office of the solicitor of the party ordered to produce, see Groves v. 
 Groves, 2 W. R. 86 ; in such case the solicitor may not charge the party inspecting 
 for attendances, Flockton v. Peake, 12 W. R. 1023 ; see also Macdonell v. McKay, 
 2 Ch. Ch. R. 141. 
 
 Prii'ihge— Deeds, —Defendants before putting in their statement of defence , 
 moved for the production by the plaintiffs of the conveyance under which they held 
 their land, in order to ascertain whether it contained a reservation of minerals : — 
 Held, that the land having been conveyed to the plaintififs in fee simple, they were 
 prima facie entitled to the land down to the centre of the earth, and unless the de- , 
 
 fendants could shew that they were not so entitled the plaintiffs could not be com- 
 pelled to produce their title deeds, Egremont Burial Board v. Egremont Iron Ore 
 Co., L. R. 14 Ch. D. 158 ; and see Anon. W. N. (1876) 40. 
 
 Privilege — Mortgagee.— It a mortgagee denies the title of a mortgagor claiming 
 to redeem, he must produce the mortgage deed, Patch v. Ward, L. R. 1 Eq. 436 ; 
 Bridge water v. DeWinton, 12 W. R. 40 ; Jones v. Jones, Kay. app. 6 : but not 
 where he submits to be redeemed, Howard v. Robinson, 4 Drew. 522 ; Weeks v. 
 Stanton, 13 W. R. 489 ; see Freeman v. Butler, 33 Beav. 289 ; Smith v. Barnes, L. 
 R. 1 Eq. 65 ; Bell v. Chamberlain, 3 Ch. Ch. R. 429. 
 
 ii i 
 
284 
 
 JUDICATURE ACT. 
 
 l: Hi ;■! 
 
 " -1.: \ I 
 
 O. XXYII. Sealing up portions of productions. — The party producing may seal up irrelevant 
 
 B. 4. parts, Mansel v. Feeny, 2 J. & H. 320. Talbot v. Marshfield, L. JR. 1 Eq. 6 ; as 
 
 to where parts of a document for which privilege is claimed are so interspersed 
 
 with the rest of the document that sealing up would be impossible, see Churton v. 
 
 Frewen, 2 Dr. & S. 390 ; Carew v. White, 5 Beav. 172. 
 
 Who may inspect productions. — The agent for purposes of inspection ought to 
 be a legal agent, or at least a general agent, and not one api)ointed for the special 
 purpose, Draper v. Manchester etc. Rail. Co., 3 D. F. & J. 23; the order does not 
 authorize inspection by a non-professional relation of the plaintiff, Summerfield v. 
 Pritchard, 17 Beav. 9 ; Williams v. Prince of Wales Assurance Co. , 23 Beav, J38 ; 
 but on special application, and on a case being made out for it, an accountant may 
 be allowed to inspect, Bonnardet v. Taylor, IJ. & H. 383 : but see the Joint Stock 
 Discount Co., 15 W. R. 99; Swansea Vale Rail. Co. v. Budd, L. R. 2 Eq. 274; 
 Lindsay v. Gladstone, L. R. 9 Eq. 132. 
 
 Fees w charges upon inspection of productions. — A plaintiff obtaining an order for 
 production may inspect documents which are ordinarily produced on payment of 
 customary fees, without payment of such fees, Hoare v. Wilson, L. R. 4, Eq. (1). In 
 case production is allowed at a solicitor's office, the solicitor may not charge the 
 party inspecting for attendance, Flockton v. Peake, 12 W. R. 1023 ; see also Mac- 
 donnell v. McKay, 2 Ch. Ch. R. 141. When an order is made in an action in the 
 Chancery Division for the production of documents at the office of the producing 
 party's solicitor, that party, if ultimately successful in the action, is not entitled, 
 as between party and party, to his solicitor's costs of the production, nor to his 
 own costs of inspecting the documents of the other party. Brown v. Sewell, L. R. 
 16 Ch. D. 517. 
 
 Copies of productions,— The party inspecting may make a copy of all documents 
 produced not sealed up, Coleman v. West Hartlepool Harbour Co., 5 L. T. N. S. 
 266. 
 
 Affidavit. — An affidavit on production is a substitute for discovery on inter- 
 rogatories, and a party is entitled to such discovery up to the latest possible date. 
 Where an affidavit had been sworn before the service of an order to produce it was 
 held to be irregular and insufficient and a new and better affidavit ordered to be 
 filed, Kennedy v. Royal Ins. Co., 3 Ch. Ch. 489. For form of affidavit, see Forms, 
 No. 34. For forms of clauses claiming privilege, see ante. 
 
 IV- i 
 
 i; 
 
 333. 
 
 5. A third party who has been served by a defendant under 
 Order 12, Rule 20, and has entered an appearance, shall, for all 
 purposes of, and incident to the production of documents, and 
 to examination, be as between him and such defendant in the 
 same situation as a defendant, and the defendant serving him 
 shall, for the same purposes, be in the same situation as a 
 plaintiff; the time for taking out an order for production or 
 for examination shall be after the party so served has delivered 
 a reply, or where the application is on behalf of the defendant 
 so serving such third party, the time shall be after the time 
 for delivering the reply hab expired. 
 
 ' Beply."—See O. XX. 
 
 334. 
 
 6. A person for whose immediate benefit a suit is prosecuted 
 or defended is to be regarded as a party for the purpose of ex- 
 amination or production of documents. 
 
 Under G. 0. Ghy. No. 139, a party for whose immediate benefit a suit is 
 brought might have been examined, but au order to produce could not be obtained 
 as against him. 
 
'.' i!9-::f^m 
 
 DISCOVERY AND INSPECTION. 
 
 335. 
 
 285 
 
 7. Where the party required to produce documents is a cor- •• xxvii. 
 poration aggregate, the affidavit shaU be made by one of the *• *' 
 officers of the corporation. 
 
 Under the former Chancery practice an order for production as against a cor- 
 poration had to be obtained in Chambers, because of its special form requiring some 
 officer of the corporation to make the affidavit, Lindsay Petroleum Co. v. Pardee, 
 fc" P. R. 140. This rule may be found sufficient to obviate the necessity of a special 
 ai.plication as to examination of officers of corporations, see notes to 0. XXVlI., 
 r. 1 
 
 336. 
 
 8. The deponent shall be subject to cross-examination, and 
 his affidavit shall have the same effect (as nearly as may be) as 
 the affidavit of a party, unless where the Court or Judge sees 
 reason for holding otherwise. 
 
 This rule must refer to the rule immediately preceding and authorises the cross- 
 examination of an officer of a corporation upon an affidavit on production made by 
 him. As to cross-examination of a party upon such an affidavit, see notes to O. 
 XXVII., r. 4. 
 
 " Court a)' Judge." — See notes to O. IV.. r. 1 
 
 (a). 
 
 337. 
 
 9. Persons who have ceased to be officers of a corporation 
 may be examined in the same manner as existing officers. 
 
 This was not so under the former practice. 
 
 338. 
 
 10. The affidavit to be made by a party against whom an 
 order for production has been made, shall specify which, if 
 any, of the documents therein mentioned, he objects to produce, 
 and said affidavit may be in the Form No. 34 in Appendix (C) 
 hereto, with such variations as circumstances may require. 
 
 See Eng. R. Sup. C, O. XXXI., r. 13. 
 
 As to form of affidavit, see notes to 0. XXVII., r. 4. 
 
 ' 339. 
 
 11. Every party to an action or other proceeding shall be 
 entitled, at any time before or at the hearing thereof, to 
 give notice in writing to any other party, in whose pleadings 
 or affidavits reference is made to any document, to produce 
 such document for the inspection of the party giving such 
 notice, or of his solicitor, and to permit him to take copies 
 thereof ; and any party not complying with such notice shall 
 
 I 
 
i 
 
 if! : 
 
 1. '■ ' .; 
 
 hi i 
 
 i'-i \ 
 
 286 
 
 it. XXVII. 
 fK. 11. 
 
 JUDICATURE ACT. 
 
 not afterwards be at liberty to put any such document in 
 evidence on his behalf in such action or proceeding, unless he 
 shall satisfy the Court that such document relates only to 
 his own title, he being a defendant to the action, or that he 
 had some other sufficient cause for not complying with such 
 notice. 
 
 See Eng. R. Sup. C, 0. XXXI , r. 14. 
 
 For form of notice to produce for inspection, • Forms, No. 23. 
 
 For forms of notice of time and place for inspection, see Forms, No. 25. 
 
 " Any party not complyinff, etc." — The party receiving the notice cannot shield 
 himself from the inspection by suffering the penalty prescribed in this rule. Un 
 der the subsequent rules of this order, if he does not produce, an order may be 
 made for inspection, failure to comply with which will render him liable to 'attach- 
 ment : if he be plaintiff to have his action dismissed, and if he be defendant to 
 have his defence struck out. See rr. 13 — 18. 
 
 '* Relates only to his ovm title" — " Other sufficient cause." — See notes to 0. 
 XXVII., r. 4. 
 
 330. 
 
 12. No allowance is to be made for any order for production 
 or any notice or inspection under any of the preceding Rules, 
 unless it is shewn to the satisfaction of the taxing officer that 
 there were good and sufficient reasons for taking such order, 
 giving such notice, or making such inspection. 
 
 See Eng. R. Sup. C, August, 1875, r. 15. 
 
 231. 
 
 13. Notice to any party to produce any documents referred 
 to in his pleading or affidavits may be in the form No. 23 in 
 Appendix (B) hereto, or to the same effect. 
 
 See Eng. R. Sup. 
 10 (a.) 
 
 C, 0. XXXI., r. 15; R. Sup. C, April, 1880, Form B, 
 
 332. 
 
 14. The party to whom such notice is given shall, within 2 
 days from the receipt of such notice, if all the documents there- 
 in referred ^.o have been set forth by him in such affidavit as is 
 mentioned in Rule 10 ; or if any of the documents referred to 
 in such notice have not been set forth by him in any such affi- 
 davit, then within 4 days from the receipt of such notice : 
 deliver to the party giving the same a notice stating a time 
 within 3 days from the delivery thereof at which the docu- 
 ments, or such of them a^ he does not object to produce, may 
 be inspected at the office of his solicitor, and stating which (if 
 any) of the documents he objects to produce and on what 
 
DISCOVERY AND INSPECTION. 
 
 287 
 
 ground. Such notice may be in the Form No. 25, in Appendix ®* 
 (B) hereto, with such variations as circumstances may require. *** 
 
 See Eng. R. Sup. C, O. XXXI., r. 16 ; R. S. 0., c. 50, s. 170. 
 " Witki.i 2 dayg." — As to computation of time, see 0. LII. 
 
 15. If the party served with notice under Rule 13 omits to 
 give such notice of a time for inspection, or objects to give in- 
 spection, the party desiring it may apply to a Judge for an 
 order for inspection. 
 
 See Eng. R. Sup. C, 0. XXXI., r. 17. 
 "^ jMtZflfc."— See notes to O. IV., r. 1 (a). 
 
 334. 
 
 16. Every application for an order for inspection of docu- 
 ments shall be to a Judge. And, except in the case of docu- 
 ments referred to in the pleadings or affidavits of the party 
 against whom the application is made, or disclosed in his affi- 
 davit of documents, such application shall be founded upon an 
 affidavit shewing of what documents inspection is sought, that 
 the party applying is entitled to inspect them, and that they 
 are in the possession or power of the other party. 
 
 See Eng. R. Sup. C, O. XXXI., r. 18. 
 
 "^ yw^/c."— See notes to O. IV., r. 1 (a). 
 
 For fbrms of order upon the application, see Forms, No. 126. 
 
 335. 
 
 17. If the party from whom discovery of any kind or inspec- 
 tion is sought objects to the same, or any part thereof, the 
 Court or a Judge, if satisfied that the right to the discovery 
 or inspection sought depends on the determination of any issue 
 or question in dispute in the action, or that for any other reason 
 it is desirable that any issue or question in dispute in the 
 action should be determined before deciding upon the right to 
 the discovery or inspection, may order that such issue or ques- 
 tion be determined first, and reserve the question as to the 
 discovery or inspection. 
 
 See Eng. R. Sup. C, (). XXXI., r. 19. 
 
 " Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 "May order that such issue or question be determined first," — See also O. XXX., 
 r. 2, as to the power of the Court to direct the settlement of a special case to deter- 
 mine some issue of law. 
 
 Where the issue raised was whether the defendant had agreed to i)ay the plaintiff 
 a sixth of his profits, the plaintiff was not entitled to production of the books and 
 
 O. XXVII. 
 14. 
 
 i: I 
 
 ••• 
 
 Co 
 
 ?:3 
 
nm 
 
 
 
 ,i! 
 
 288 JUDICATURE ACT. 
 
 O. XXFII. accounts of the defendant before the hearing, Turney v. Bayley, 12 W. R. 633 ; se* 
 B. 17 Mansel v. Feeney, 2 J. & H. 823 ; De la Rue v. Dickenson, 3 K. & J. 388 ; Kay v. 
 
 Hargraves, 14 L. T, N. S. 281 ; Finnegan v. Jamea, L. R. 19 Eq. 72 ; Hoffman v. 
 Fostill, L. R. 4 Ch. App. 673. As to the discretion of the Court in oases where thfr 
 plaintiff asks for discovery to which he is not entitled if wrong, and which, if he 
 succeeds, will be his as a matter of course, see Elmer r. Creasy, L. R. *J Ch. App. 
 «9 ; Lett r. Parry, 1 H. & M. 517 ; Lockett v. Lockett, L. K. 4 Ch. App. 336 ; Saull 
 V. Browne, L. R. 17 Eq. 402 ; 9 Ch. App. 364 ; Great Western Colliery Company v. 
 Tucker, L. R. P Ch. App. 376 ; Thomson v. Dunn, L. R. 5 Ch. App. 573 ; Carver v. 
 Pirito Leite, L. R. 7 Ch. App. 90. 
 
 236. 
 
 18. If any party fails to comply with any order for dis- 
 covery or inspection of documents, he shall be liable to attach- 
 ment. He shall also, if a plaintiff, be liable to have his action 
 dismissed for want of prosecution ; and, if a defendant, to have 
 his defence, if any, struck out, and to be placed in the same 
 position as if he had not defended ; and the party who obtained 
 the order for discovery or inspection may apply to the Court 
 or a Judge for an order to that effect, and an order may be 
 made accordingly. 
 
 See Eng. R. Sup. C, O. XXXI., r. 20 ; G. O. Chy. No. 144. 
 
 This rule does not apply to cases in which the names of partners are not disclosed 
 under O. XII., r. 12, Pike v. Keene, 24 W. R. 322. 
 
 "Fails to comply." — The failure may be partial or complete— that is an affidavit 
 may be filed which is insufficient, or no afliuavit may at all be filed. 
 
 Where the affidavit filed is insufficient, the party retiuiring production should 
 not move to commit, but should move for an order that tlie party required to pro- 
 duced do file a further and better affidavit, Lazarus r. Mosely, 5 Jur. X. S. 1119 j 
 Rumbold v. Forteath, 3 K. & J. 44 ; Hawford v. Lloyd, 2 W. R. 5:57 ; Rhodes v. 
 Xeild, 1 Ch. Ch. R. 131. As to what is a sufficient affidavit, see notes to O. XXVII., 
 r. 4. 
 
 " Attachment."— See O. XL. 
 
 "Be liable." — The Court has a discretion and will exercise it. Hartley v. Owen, 
 W. N. (1876), 193; Anon., W. N. (1875) 204. See the subject discussed in The 
 Republic of Liberia v. Roye, L. R. 9 Ch. App. 509 ; and in appeal in tlie House of 
 Lords, S. C. L. R. 1 App. Ca. 134. 
 
 In an appeal from a decision of one of the Masters refusing to dismiss an action 
 for want of prosecution, an order for discovery had been made on the 2nd of 
 November, directing the plaintiff to file his affidavit in four days ; subsequently 
 two days more were given him, but he failed to comply with the order. Tlie present 
 summons was then taken out. On the other side it was said that they were now 
 ready to comply with the order. Lush, J., said : "I have not yettiraiited an appli- 
 cation of this kind ; nor shall I do so when the parties really intend to answer, tnis 
 is a highly penal provision, and only to be exercised in the last resort. With regard 
 to the costs of this sunnnons, I should have been inclined to make tliem the defen- 
 dants in any event ; but as the Master has decided that they should l)e costs in the 
 cause, and it is the principle of the Act that costs should not be the subject of an 
 appeal ; I shall make no order,'' Anon., W. N. (1875) 202. 
 
 " Court or Judge."— See notes to O. IV., r. 1 (a). 
 
 337. 
 
 19. Service of an order for discovery or inspection made 
 against any party on his solicitor shall be sufilciont service to 
 
DISCOVERY AND INSPECTION. 
 
 289 
 
 found an application for an attachment for disobedience to the •• x*'^"* 
 order. But the party against whom the application for an "* * 
 attachment is made may shew in answer to the application that 
 he has had no notice or knowledge of the order. 
 
 See Eng. R. Sup. C, O. XXXI., r. 21. 
 
 In Chancery an order to produce did not require personal service. If the person 
 required to omy the same has a solicitor, it is to be sufficient to serve the same 
 upon the solicitor, G. O. Chy. No, 136. 
 
 238. 
 
 20. A solicitor upon whom an order against any party for 
 discovery or inspection is served under the last Rule, who 
 neglects without reasonable excuse to give notice thereof to his 
 client, shall be liable to an attachment. 
 
 See Eng. R. Sup. C, O. XXXI., r. 22; G. O. Chy., No. 136. 
 
 339. 
 
 21. Any party may, at the trial of an action or issue, use in 
 evidence any part of the examination of the opposite parties ; 
 provided always, that in such case the Judge may look at the 
 whole of the examination, and if he shall be of opinion that 
 any other part is so connected with the part to be so used that 
 the last mentioned part ought not to be used without such 
 other part, he may direct such other part to be put in evidence. 
 
 See Eng. R. Sup. C. O. XXXI., r. 23; G. O. Chy., No. 146. 
 
 The examination of a defendant is a substitute for the discovery by answer ; his 
 examination may be read at the hearing, and it is not necessary to call him as a 
 witness Proctor v. Grant, 9 Gr. 31 ; and the examination of a plaintiff by a defen- 
 dant would be equally admissible, lb. ; and see Powell v. Lea, 20 Gr. 621. Where 
 a defendant has been examined on his answer, the answer and examination may be 
 read in connection, and used as an affidavit in support of a motion for decree, 
 Mather v. Short, 14 Gr. 254. 
 
 :> 
 I- 
 
 CO 
 
 ORDER XXVIII. 
 
 Admissions. 
 
 340. 
 
 1. Each party is to admit such of the material allegations «• xxviii. 
 contained in the statement of claim or defence of the opposite "• *• 
 party as are true ; or he may give notice, by his own statement 
 or otherwise, that he admits for the purposes of the action 
 19 
 
290 
 
 JUDICATURE ACT. 
 
 o. XXVIII. ^Yie truth of the case generally, or of any part of the case, stated 
 **■ *• or referred to in the statement of claim or defence of the 
 
 opposite or any other party. 
 
 See Eng. R. Sup. 0., O. XXXII., r. 1 ; G. 0. Chy. No. 124. 
 
 O. XVIII., r. 4, provides that where the Court or a Judge shall be of opinion 
 that any allegations of fact denied or not admitted by either, or any party ought to 
 have been admitted, the Court may^ make such order as shall be just with respect 
 to any extra costs occasioned by their having been denied or not admitted. 
 
 By G. O. Chy. No. 150, a plaintiff was required to make admissions in his 
 replication. 
 
 In Kennedy v. Lawlor, 14 Gr. 224, it was said, that where pleadings are filed, 
 they should be in language and statement as brief and concise as possible, and 
 neither matters of argument nor evidence should be introduced into them. Where 
 pleadings are filed containing useless or improper statements, or admissions so re- 
 stricted as to render proof necessary, the costs of such pleading will not be allowed 
 to the party filing it ; but on the contrary he will be ordered to pay the costs occa- 
 sioned thereby. 
 
 After a decree to take the accounts of a partnership, the Chief Clerk directed 
 that two accountants, one of whom was employed by the plaintiff and the other by 
 the defendant, in investigating the accounts for the purposes of the suit, should re- 
 port on the accounts, shewing what items were undisputed and what were disputed, 
 and verify their report by affidavit. The accountants verified an account shewing 
 £'>41 due from the defendant to the plaintiff on the undisputed items, and verified 
 also an account of disputed items. These were items of charge against the defend- 
 ant, so that, however they were decided up<m, the £541 would not be reduced :— 
 Held, that the £541 ought to be ordered into Court ; for that, although no certi- 
 ficate had been made, the fact that £.^41 at least was due from the defendant was 
 ascertained with sufficient certainty to entitle the plaintiff to have it ordered into 
 Court ; held also, that under the circumstances of the present case, the defendant 
 must be taken to have admitted by his agent that at least £541 would be found due 
 from him. The principles on which the Court acts in ordering payment into Court 
 after a decree for an account considered, London Syndicate Co. v. Lord, L. B. 8 
 Ch. D. 84. 
 
 341. 
 
 2. Either party may call upon the other party to admit any 
 document, saving all just exceptions ; and in case of refusal or 
 neglect to admit after such notice, the costs of proving any 
 such document shall be paid by the party so neglecting or re- 
 fusing, whatever the result of the action may be, unless at the 
 hearing or trial the Court certify that the refusal to admit was 
 reasonable ; and no costs of proving any document shall be 
 allowed unless such notice be given, except where the omission 
 to give the notice is, in the opinion of the taxing officer, a 
 saving of expense. 
 
 See Eng. R. Sup. C, O. XXXIL, r. 2 ; R. S. 0., c. 50, s. 171. 
 
 This is almost a copy of Chancery Con. Gen. Ord. 156, and of Com. Law Fro. 
 Act, R. S. O., c. 50, 8. 171. 
 
 The section of the Com. Law Pro. Act has been held to apply to all documente 
 the party intends to adduce in evidence, and is not confined to such only as are in 
 h'.A custody or control, Rutter v. Chapman, 8 M. & W. 388 ; Conger v. McKechnie, 
 1 Cham. K. 220 ; including foreign judgments. Smith v. Bird, 3 Dowl. P. C. 641 ; 
 and documents the validity of which is directly in issue, Spencer v. Barough, 9 
 M. & W. 425. 
 
ADMISSIONS. 
 
 291 
 
 Bsions in his 
 
 le omission 
 
 lom. Law Pro. 
 
 Among the " just exceptions " are, the admissibility of the document as evidence, O. XX Vlllt 
 Phillips V. Harris, Car. & M. 492 ; and its legal effect, Hills v. The London Gas b. 4. 
 Light Co., 1 F. ft F. 346. An admission so far recognizes the general character and 
 accuracy of the document that no objection can afterwards be made to its reception 
 on the ground of interlineation, Freeman v. Steggall, 14 U. C. Q. B. 202 ; and see 
 Doed. Wright v. Smith, 8 A. & E. 255. The admission of a copy_ does not entitle 
 the plaintiff to put in the copy without first accounting for the original, Sharpe v. 
 Lamb, 11 A. & E. 805; and see Goldie v. Shuttlewortn, 1 Camp. 70; nor does it 
 obviate the necessity of producing the document admitted at the trial, Vane v. 
 Whittington. 2 Dowl. N. S. 767 ; Lesslie v. Leaby, 5 Q. B. O. S. 482. The 
 admission when made is conclusivej Langley v. Earl of Oxford, 1 M. & Wi 508 ; 
 and when made for one trial contmues to be so for any future trial, Elton v. 
 Larkins, 5 C. & P. 385 ; Barraclough v. Greenhough, L. R. 2 Q. B. 612 ; Wilson v. 
 Baird, 19 U. 0. C. P. 98. 
 
 A party called on to admit must have a reasonable time allowed him, Tynn v. 
 Bellingaley, 3 Dowl. P. C. 810 ; Cary v. Cumberland, 1 Pr. R. 140. 
 
 '* Cost of proving any document shall be paid, etc." — Biit this does not apply if 
 the witness who is called to prove the document f:?ive evidence on any other fact 
 than the genuineness of the document, Stracey v. Blake, 7 C. & P. 404. 
 
 The party refusing must pay the costs though the verdict be set aside, and 
 though before the second trial the admission be made, Lewis v. Howell, 6 A. & E. 
 769. The party giving the notice is entitled to the costs only if the document be 
 proved, Doed. Peters v. Peters, 1 C. & K. 279 ; Day v. Vinson, 9 L. T. N. S. 723. 
 
 Order for payment into Court. — In an administration action notice of motion 
 was served upon a defendant, an executor, for payment into Court of money, part 
 of the testator's estate, which it was shewn by afi^davit that he had received. The 
 defendant did not appear on the motion : — Held, that the defendant not havin;- 
 disputed the affidavit there was a sufHcient admission that the money was in his 
 hands and that he must be ordered to pay it into Court, Freeman v. Cox, L. R. 8 
 Gh. D. 148. Jessel, M. R., said : ' ' The question is whether there is a sufficient 
 admission on the part of the defendant. In Boschetti v. Power, 8 Beav. 98, Lord 
 Langdale observed, ' The Court cannot, on motion, order money to be paid or stock 
 transferred into Court, unless it has a distinct admission of the defendant that the 
 money is in his hands, or that the stock is in his name.' The new Orders have no 
 reference to such a case. I will, therefore, make a precedent. It seems to me that 
 the principle on which the Court has ordered payment of money into Court has 
 been that the defendant must admit that the money is in his hands for the purpose 
 of the application." 
 
 342. 
 
 3. A notice to admit documents may be in the Form No. 26, 
 in Appendix (B) hereto. 
 
 See Eng. R, Sup. C, 0. XXXII., r. 3. 
 
 243. 
 
 4. The production of any written admissions purporting to 
 be admissions in the action, and to be made in pursuance of 
 any notice to admit documents or otherwise, and to be signed 
 by the solicitor of the party by whom, or on whose behalf, they 
 purport to be made, shall be sufficient prima facie evidence of 
 such admissions. 
 
 See Eng. R. Sup. C, 0. XXXIL, r. 4 ; G. O. Chy. No. 48 ; Reg.-Gen. T. T. 
 1856, No. 169, Ont. 
 
 The English practice requires an affidavit of the solicitor or his clerk verifying 
 the signature to the admissions. 
 
 f"m 
 
 if 
 
 
li 
 
 
 11' 
 
 i -. 
 
 Ill 
 
 ;i: 
 
 IP' - 
 
 I is; 
 
 if 
 
 ill iri 
 
 292 
 
 O. XXIX. 
 H. 1. 
 
 
 . 'H 
 
 JUDICATUBE ACT. 
 
 ORDER XXIX. 
 
 Inquiries and Accounts. ,: 
 
 !344. 
 
 1. The Court or a Judge may, at any stage of the proceedings 
 in a cause or matter, direct any necessary inquiries or accounts 
 to be made or taken, notwithstanding that it may appear that 
 there is some special or further relief sought for, or some special 
 issue to be tried, as to which it may be proper that the cause 
 or matter should proceed in the ordinary manner. 
 
 gee Eng. R. Sup. C, O. XXX.; R. S. 0., c. 50, ss. 189, 197. 
 
 Under O. XI., where a writ has been indorsed for an account, as, for instance, 
 in case of a partnership, or executorship or ordinary trust account, an order mav 
 be made, either in default of appearance or after appearance, for the account with 
 aU usual directions. 
 
 For form of order, see Forms, No. 132. 
 
 In a suit to take the accounts of a partnership the defendants by their answer, 
 filed before the Judicature Act came in force, admitted the partnership, that they 
 had not accounted, but the plaintiS had not accounted, and that moneys were due 
 from him to them, plaintiff joined issue and moved under the new practice before 
 the hearing under 0. XXXVI., r. 8, upon affidavit of service that the accounts 
 of the partnership might be taken : — Held, that he was entitled to the order under 
 this order or under O. XXXVI., r. 8, and an order was made accordingly, Turquand 
 V. Wilson, L. R. 1 Oh. D. 85. 
 
 As to an order for accounts on a writ indorsed for that purpose, see O. XL 
 
 Qucere. — Whether, under an order for the ordinary accounts and inquiries 
 relating to partnership defJings and transactions, the question of the fraudulent 
 withdrawal of moneys by one partner and of a claim for interest thereon, might 
 not have been raised. Barber v. Mackrell, L. R. 12 Ch. D. 534. But see as to the 
 very extensive powers given to the Masters in taking accounts, G. O. Chy. No. 220. 
 
 345. 
 
 2. Where a reference is made to any official or other referee 
 under the Act, the referee shall have all the powers as to cer- 
 tifying and amending of a Judge of the High Court of Justice, 
 and shall make his report of and concerning the matters ordered 
 to be tried pursuant to the statute ; 
 
 (a) The referee may, if he think fit, examine the parties to 
 the action, and their respective witnesses, upon oath or affir- 
 mation, and the parties shall produce before the referee all 
 books, deeds, papers and writings in their or either of their 
 custody or power relating to the matters ordered to be tried ; 
 
 (6) Neither the plaintiff nor the defendant shall bring or 
 prosecute any action against the referee, or against each other, 
 of or concerning the matters ordered to be tried, and if either 
 
 ! .. 
 
 Ir 
 
 H 
 
INQUIRIES AND ACCOUNTS. 
 
 party by affected delay or otherwise wilfully prevent the re- ' 
 feree from making his report, he or they shall pay such costs ^ 
 to the other as the High Court, or any Judge thereof, may 
 think reasonable and just ; 
 
 (c) In the event of the referee declining to act, or dying 
 before he has made his report, the parties may, or if they can- 
 not agree, one of the Judges of the High Court may, upon 
 application by either party, appoint a new referee. 
 
 See Eng. R. Sup. C. (April, 1880), Form H, 31 & 32, 
 
 As to references, see sees. 47-50 and notes. 
 
 "Shall produce." — The Jud^e who directed the reference may make an order for 
 production before the referee, m re Leigh, Rowcliffe :;. Leigh, L. B. 4 Gh. D. 661. 
 
 C«fcre.— Whether such an order can be made by the referee, lb. 
 
 As to proceedings before referees and their powers, see O. XXXL, rr. 23-28. 
 
 346. 
 
 3. Where a reference is made by order to the award of an 
 arbitrator, the arbitrator shall have all the powers as to certi- 
 fying and amending of a Judge of the High Court of Justice ; 
 and shall make and publish his award in writing of and 
 concerning the matters referred, ready to be delivered to 
 the parties in difference, or such of them as require the 
 same (or their respective personal representatives, if either of 
 the said parties die before the making of the award) on or 
 before the time mentioned in the order, or on or before such 
 further day as the arbitrator ii.ay from time to time appoint 
 and signify in writing signed by him and indorsed on the 
 order ; 
 
 (a) The arbitrator may (if he think fit) examine the said parties 
 to the action, and their respective witnesses, upon oath or 
 affirmation; and the parties shall produce before the arbitrator 
 all books, deeds, papers and writings in their or either of their 
 custody or power relating to the matters in difference ; . 
 
 (6) Neither the plaintiff nor the defendant shall bring or 
 prosecute any action against the arbitrator or one another of 
 or concerning the matters referred ; and if either party by 
 affected delay or otherwise wilfully prevent the arbitrator from 
 making ai. award, he or they shall pay such costs to the other 
 as the arbitrator may think reasonable and just ; 
 
 (c) In the event of either of the parties disputing the validity 
 of the award, or moving to set it aside, the Court or Judge 
 
 298 
 
 XXIZ. 
 
 <9. 
 

 0. 
 
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 ff 
 
 m. 
 
 
 294 
 
 XXIX. 
 
 3. 
 
 m 
 
 ■•I K. 
 
 JUDICATURE ACT. 
 
 shall have power to remit the matters referred or any or either 
 of them to the reconsideration of the arbitrator ; 
 
 {d) In the event of the arbitrator declining to act or dying 
 before he has made his award, the parties may, or if they 
 cannot agree, one of the Judges of the High Court may, on ap- 
 plication by either side, appoint a new arbitrator ; 
 
 (e) Unless restrained by any order of the High Court of 
 Justice, or of any Judge thereof, the party or parties in whose 
 favour the award shall be made shall be at liberty after the 
 expiration of 14 days after service of a copy of the award on 
 the solicitor or agent of the other party to sign final judgment 
 in accordance with the award, and for all costs that he or they 
 may be entitled to under the order, and under the award, to- 
 gether with the costs of the judgment. 
 
 See Eng. R. Sup. C, April, 1880, Form H. 22. 
 
 " Seference." — The old law and practice, with reference to arbitration, are not 
 abolished by the Judicature Act, and consequently when a cauHe is referred to an 
 arbitrator for decision, according to the old practice, the arbitrator cannot be 
 called on to report to the Court with regard to the matter referred to him, but his 
 decision is final, Cruikshank v. The Floating Swimming Baths Company, L. R. 1 
 C. P. D. 260. 
 
 For Statute as to compulsory and voluntary references to arbitration, see R. S. 
 O., c. 50, ss. 189-227. 
 
 For order of reference, see Forms, No. 127. 
 
 For form of judgment after reference, see Forms, No. 158. 
 
 " After the estpiration of 14 days," — As to computation of time, see 0. LIL 
 
 347. 
 
 4. An order under either of the preceding rules shall be 
 read as if it contained the provisions set forth in the said rule, 
 and shall not set forth the said provisions, but may contain 
 any variation therefrom, and any other directions which the 
 Court or Judge shall see fit to make. 
 
 e. 1. 
 
 m -i 
 
 ORDER XXX. 
 Questions of Law. 
 
 348. 
 
 1. The parties may, after the writ of summons has been 
 issued, concur in stating the questions of law arising in the 
 action in the form of a special case for the opinion of the Court ; 
 
^^m 
 
 on ap- 
 
 • QUESTIONS OF LAW. 
 
 See Eng. R. Sup. C, O. XXXIV., r. 1 ; see Common Law Procedure Act, 11 
 S. 0., 0. 50, 8. 181 ; and R. S. O., o. 40, s. 86. 
 
 For the purpose of special coses persons may represent classes, see O. XII., rr. 
 7, 9, 13 ; Bayley v. Miles, 21 L. T. N. S. 784 ; Bardwell v. Sheffield Waterworks 
 Company, L. K. 14 Eq. 617 ; re Brown, 29 Beav. 401 ; Swallow v. Binns, 9 Ha. 
 app. 47. Where the special case seeks to have the construction of a trust deed de- 
 termined the trustees ought to be parties, Vorley v. Richardson, 8 D. M. &. G. 12G, 
 overruling Darby v. Darby, 18 Beav. 412. 
 
 A special case may be amended, Thistlethwaite v. Garnier, 5 D. & Sm. 73 ; after 
 it has been set down for hearing, Domville v. Lamb, 9 Ha. app. 55 ; and even at 
 the hearing, Bell v. Cade, 2 J. & H. 122 ; and on abatement it may be revived, 
 Wilson V. Whateley, IJ. & H. 331 ; Ains worth i. Alraan, 14 Beav. 697. Gener- 
 ally the Court will only give its opinion on questions of construction, and not bind 
 the rights of parties, Bailey v. Collett, 23 L. J. Ch. 230. 
 
 As to what the Court will or will not decide on a special case, see Schroder v. 
 Schroder, Kay, 678 ; Evans v. Saunders, 1 Drew. 415, G54 ; Day v. Day, IS Jur. 
 1013 ; Leslie r. Thompson, 9 Ha. 268 ; Wilson v. Bennett, 20 L. J. Gh. 279 ; 
 Edwards v. Miibank, 4 Drew. 606 ; Earl of Tyrone v. Marqu'': of Wav.erford, 1 D. 
 F. & J. 613. 
 
 As to the statements of facts, lee Bulkeley v. Hope, 8 D. M. & G. 36 ; Dom- 
 ville V, Lamb, 9 Ha. app. 55 ; Lane v. Debenham, 17 Jur. 1005. 
 
 295 
 
 O. XXX. 
 K. 1. 
 
 (a) The parties to a special case may, if they think fit, enter 
 into an agreement in writing, that on the judgment of the 
 Court being given in the affirmative or negative of the question 
 or questions of law raised by the special case, a sum of money, 
 fixed by the parties, or to be ascertained by the Court or in 
 such manner as the Court may direct, shall be paid by one of 
 the parties to the other of them, either with or without costs of 
 the action ; and the judgment of the Court may be entered for 
 the sum so agreed or ascertained, with or without costs, as the 
 case may be , and execution may issue upon such judgment 
 forthwith, unless otherwise agreed, or unless stayed on appeal ; 
 
 See Eng. R. Sup. C, April 1880, r. 9 ; R. S. O., c. 50, s. 182. 
 
 (6) Every special case shall be divided into paragraphs 
 numbered consecutively, and shall concisely state such facts and 
 documents as may be necessary to enable the Court to decide 
 the questions raised thereby ; 
 
 See Eng. R. Sup. C, O. XXXIV., r. 1. 
 
 (c) Upon the argument of such case the Court and the 
 parties shall be at liberty to rel'er to the whole contents of 
 such documents, and the Court shall be at liberty to draw 
 from the facts and documents stated in any such special case 
 any inference, whether of fact or law, which might have been 
 drawn therefrom if proved at a trial. 
 
 See Eng. R. Sup. C, O. XXXIV., r. 1 ; R. S. 0., c. 50, ss. 181-18.0. 
 
13 
 
 296 
 
 O. XXX. 
 
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 JUDICATURE ACT. 
 
 249. 
 
 2. If it appears to the Court or a Judge, either from the state- 
 ment of claim or defence or reply, or otnerwise, that there js in 
 any action a question of law, which it would be convenient to 
 have decided before any evidence is given or any question or 
 issue of fact is tried, or before any reference is made to a 
 referee or an arbitrator, the Court or Judge may make an 
 order accordingly, and may direct such question of law to be 
 raised either by special case or in such other manner as the 
 Court or Judge may deem expedient ; and all such further 
 proceedings as the decision of such question of law may render 
 unnecessary may thereupon be stayed. 
 
 See Eng. R. Sup. C, O. XXXIV., r. 2. 
 
 A jiKlpre has power, after writ and before statemert of claim, to order a point 
 of law to be decided before the issue of fact is tried, The Metropolitan Board of 
 Works V. The New River Co., L. R. 1 Q, B. D. 727 ; 2 q. B. 1). 07. The Court 
 of Ai)peal will not interfere with the discretion of the Court below, except in an 
 extreme case, Ibid. That under this rule the Court may, in an action involving 
 questions both of law and of fact, direct the question ot law to be raided for its 
 opinion before trying the question of fact, has reference only to a case where the 
 action has not yet come on for trial, but by analogy to that rule, the Court will at 
 the trial of an action involving questions both of law and fact, decide the ques- 
 tion of law first, if it shall appear that the decision of such question may render 
 it unnecessary to try the question of fact, Pooley v. Driver, L. R. 5 Ch. I). 460. 
 
 Questions of law will not be tried speculatively ; they must be necessary for 
 the decision of the action, Republic of Bolivia r. National Bolivian Navigation Co., 
 
 24 w. R. :m. 
 
 * " Court or Judge."— See notes to 0. IV., r. 1 (a). 
 
 3. Every special case shall be signed by the si al parties 
 or their solicitors, and shall be filed by the plaintul. C' pies 
 for the use of the Judges shall be delivered by the plaiiitiff. 
 
 See Eng. R. Sup. C, O. XXXIV., r. 3. 
 
 351. 
 
 4. No special case in an action to which a married woman, 
 infant, or person of unsound mind is a party shall be set down 
 for argument without leave of the Court or a Judge, the appli- 
 cation for which must be supported by sufiicient evidence that 
 the statements contained in such special case, so far as the 
 same affect the interest of such married woman, infant, or 
 person of unsound mind, are true. 
 
 See Eng. R. Sup. C, 0. XXXIV., r, 4. 
 
 For the practice where a woman, who is a party, marries after the case is set 
 down, see Johnson v. Brown, L. R. 8 Eq. 584 ; Atty v. Etough, L. R. 13 Eq. 462. 
 Where an infant interested in the case was bom after the setting down, a decree 
 
QUESTIONS OF LAW. 
 
 S97 
 
 was made, prefaced by an order to amend and set down againnt the infant, Bamaby O. XJLX« 
 V. Tassell, L. K. 11 Eq. 363 ; and see Savage v. Snell, L. R. 11 Kq. 264. R. «. 
 
 " Court or a Judge."— See notes to O. IV., r. 1 (a). 
 
 "Sufflcient eiidence."— The ntatement of counsel was received as sufficient evi- 
 dence, Ebres v. Ebres, 20 W. R. 480. 
 
 253. 
 
 5. Either party may enter a special case for argument by 
 delivering to the proper officer a memorandum of entry, in the 
 Form No. 87 in Appendix (E) hereto, and also if any married 
 woman, infant, or person of unsound mind be a party to the 
 auction, producing a copy of the order giving leave to enter the 
 same for argument. 
 
 See Eng. R. Sup. C, 0. XXXIV., r. 5. 
 
 253. 
 
 6. This Order shall apply to every special case stated in an 
 action or in any proceeding incidental to an action ; whethtr 
 under the said cr any other Act. 
 
 See Eng. R. Sup. C, April, 1880, r. 10. 
 
 ORDER XXXI. 
 Trial. 
 
 if 
 
 254. 
 
 1. There shall be no local venue for the trial of any action o. xxxi. 
 
 except an action of ejectment, but the plaintiff shall in his 
 s ^btement of claim name the county town in which he proposes 
 that the action should be tried, and the action shall, unless a 
 Judge otherwise orders, be tried in the place so named. Any 
 order of a Judge, as to such place of trial, may be discharged 
 '• varied by a Divisional Court of the High Court. 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 1. 
 
 In Chancery the bill of complaint had to contain among other things the name 
 of the place at which witnesses are intended to be examined, see Chancery Con. 
 Gen. Ord. 74. At Common Law the name of the County shall in all cases be 
 stated in the margin of a declaration, and shall be taken to be the venue intended 
 by the plaintiff, and no venue shall be stated in the body of the declaration, or in 
 any subsequent pleading : Provided that in cases in which local description is now 
 required, such local description shall be given. Rules of Pleading, Trin. Term, 1856, 
 No. 4. 
 
 The effect of this rule seems to be to abolish all distinction between transitory 
 and local actions, saving only in cases of ejectment. 
 
 B. 1. 
 
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 298 
 
 o. xxu. 
 
 B. 9. 
 
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 JUDICATURE ACT. 
 
 355. 
 
 2. After the close of the pleadings either party may give 
 notice of trial for the next sitting of the Court which shall be 
 not less than 10 days thereafter for the place so named or or- 
 dered ; or if the plaintiff does not give such notice of trial, 
 and if the pleadings were closed 6 weeks before the commence- 
 ment of such sitting, the defendant, instead of giving notice 
 of trial, may apply to the Court or Judge to dismiss the action 
 for want of prosecution ; and on the hearing of such applica- 
 tion, the Court or Judge may order the action to be dismissed 
 accordingly, or may make such other order, and on such terms, 
 as to the Court or Judge may seem just. 
 
 See Eng. R. Sup. C. (June, 1876), r. 13 ; Eng. R. Sup. C, O. XXXVI., r. 4 ; 
 G. O. Chy. Nos. 161, 273. 
 
 A defendant became bankrupt after service of notice of trial, and the common 
 order of revivor vas then made against his trustee and served on him. The trustee 
 did not enter an appearance. Notice was served on him that the action was re- 
 stored to the paper for trial, but he did not appear at the trial : — Held, that what 
 had been done was a sufficient notice of trial, Chorlton v, Dickie, L. R. 13 Ch. D. 
 160. 
 
 Where one of several defendants in an action has delivered his defence, and the 
 time for the plaintiff to deliver his renly to such defence has expired, but the plain- 
 tiff has, without the knowledge of LVi.' defendant, agreed in writing with the other 
 defendants to extend the time for ue.ivering their defences, that defendant cannot 
 move to dismiss the action against him for want of prosecution. A defendant's 
 ' proper course under such circumstances is to >vrite to plaintiff's solicitor and 
 inquire how the case stands as to the other defendants, Ambroise r. Evelyn, L. R. 
 11 Ch. D. 759. 
 
 "Not less than 10 days.'''' — As to computation of time, see O. LII. 
 
 "Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 For form of notice of trial, see Forms, No. 27. 
 
 For form of pracipe to enter for trial, see Forms, No. 89. 
 
 Countermand. — Under the former Common Law practice a notice of trial 
 could be countermanded at any time prior to four days before the trial, R. S. O.. 
 c. 50, s. 245. In Chancery a notice of hearing could not be countermanded, Milne 
 V. Lamson, 6 P. R. 281 (note). O. XXXVI., r. 13, of tbo English Orders provides 
 that no notice of trial shall be countermanded except by consent or by leave of 
 the Court or a Judge. The present rules are silent as to a countermand. For the 
 practice in case of conflict between the former practices where there is no new pro- 
 visions, see notes to sec. 12 of the Act. It will be an easy matter, however, to 
 protect oneself againsv a countermand, for a counter notice of trial may be given 
 and this cannot, it is presumed, be countermanded by the opposite i)arty. 
 
 256. 
 
 3. Subject to the provisions of the Act and of the preceding 
 Rules, the Court or a Judge may, in any action at any time or 
 from timt3 to time, order that different questions of 'act arising 
 therein be tried by different modes, or that one or more 
 questions of fact be tried before the others, and may appoint 
 
W' 
 
 TRIAL. 
 
 299 
 
 r. 4; 
 
 more 
 
 the place or places for such trial or trials, and in all cases may •• ^^xxi. 
 order that one or more issues of fact be tried before any other "* *' 
 or others. 
 
 By the English 0. XXXVI., r. 3, the plaintiff may select one of the various 
 modes of trial : before a Judge or Judges, before a Judge sitting with assessors, 
 before a Judge and jury, or before an ofEcial or special referee, with or without asses- 
 sors ; but the defendant may, if he give a notice to that effect, have . e action tried 
 by a Judge and jury. The above rule is a copy of the English 0. XXXVI., r. 6. 
 
 In an action against several defendants involving various issues, the plaintiffs 
 having applied for an order for two simple issues to be tried as between themselves 
 and two of the defendants before the rest of the action, the Gourt made the order 
 on the plaintiffs undertaking not to seek relief against the said two defendants in 
 respect of any cause of action other than that covered by the issues so to be tried, 
 and also discontinuing such portion of the action as the Court should direct, Emma 
 Silver Mining Co. v. Grant, T*. R. 11 Ch. D. 918. In giving judgment in 
 above case, Jessel, M. R., said: — "I do not intend to lay down a general rule for 
 the proper construction of Order XXXVI., rule 6, (Ont. Act, O. XXXI., r. 3,) 
 because, first of all, I think one Judge has no right to embarrass other Judges by 
 laying down general rules of construction; and, in the second place, I think it is 
 very undesirable to limit the operation of a rule expressed in general terms by stat- 
 ing the circumstances, or all the circumstances, under which the Judge thinks the 
 discretion ought to be exercised. The discretion is general. Of course it is a 
 judicial discretion, and there must be sufficient reason for exercising it ; but what I 
 intend to do is to state one or two cases in which I have been asked to put the rule 
 in force, and what I have done and why ; and then I shall state why I think I 
 ought to put the rule in force in the present instance. I have been asked to do so 
 in the case of a defendant. The first case that came before me was a case in which 
 a lady alleged that she was the legitimate child of somebody, and that as such she 
 was entitled to take some very long and expensive and intricate accounts against 
 some trustees. The trustees shewed by atfidavit that .he lady was born before the 
 marriage of her parer ts, and that thare were very strong grounds for supposing that 
 she was not a legitimate child at all. I thought it a proper case, inasmuch as the 
 expense of taking the accounts would have been enormous, and the whole suit 
 would have ended in nothing but costs if the plaintiff did not establish her legiti- 
 macy, for the issue of legitimacy or illegitimacy to be tried first under this rule. I 
 80 directed, and, as I am informed, the result was that the lady did not succeed in 
 establishing her legitimacy, and there was an end to the action, which was exactly 
 what I anticipated. In a case of this kind my opinion is that the Judge must have 
 some evidence which will make it at least probable that the issue will )]ut an end 
 to the action. The plaintiff is not to be harrassed at the instance of the defendant 
 by a series of trials, each trial taking issue on every link of the plaintiff's case. 
 That is not the meaning of the rule as I understand it, but it may properly be ap- 
 plied in such a case as that I have stated, where the Judge has serious reason to 
 believe that the trial of the issue will put an end to the action. I have had a 
 case in which the plaintiff alleged a very long title to and claimed an estate. 
 He alleged himself to be heir-at-law of a person who was entitled to this estate. 
 He wanted a great deal of discovery, and the possession of a very large property. 
 The defendant said that the plaintiff was a pauper, that it was a mere experimental 
 action, and that there was not a shadow of ground for his claim. In that case I 
 felt no hesitation in directing an issue whether the man was the hoir-at-law. It 
 turned out that he was not, and I believe the case was abandoned and was never 
 tried at all. There was a third case I remember before me at the Chambers — I 
 only give these instances as illustrations — in which a man brought an action on be- 
 half of himself and all other the tenants of a manor to restrain the inclosure of a 
 common. The defendant said ' This will be a very expensive action to try ; it 
 will involve the customs of the manor as to the rights of the common,' and that as 
 usual, they had put up a man, who, although not technically, was really a pauper, 
 to sue on behalf of himself and all others, the only result of which action could be 
 that the defendants, if successful, would have to pay the costs out of their own 
 pockets. They alleged and proved by affidavit that tne person who was plaintiff, 
 and who said he was tenant of the manor, was not so, and that his name or the 
 name of his ancestors had never appeared on the Court rolls of the manor. The 
 only answer that I could get from the plaintiff was that he believed he was a tenant, 
 but he could not shew how. I thought, before the defendants were put to the 
 enormous expense of a trial of ail the issues, it was right to put the plaintiff to the 
 
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 JUDICATURE ACT. 
 
 proof that he was a tenant at the time when the action was brought. But I do not 
 remember before having an application on the part of the plaintiff, and, as far as I 
 can learn from the inquiries I have made, no one else is aware of any such case. 
 Now it appears to me that when the plaintiff makes the application different 
 considerations arise. The defendant has, of course, a right to shape his own case, 
 and to say to the plaintiff, ' You must prove every part of your case. If I can put 
 my linger on one part of your case and shew that there is no foundation for it what- 
 ever, it is quite wrong to subject me to the whole expense of a protracted investi- 
 gation, and especially when you, the plaintiff, cannot pay the costs of it.' But 
 when a plaintiff has chosen to frame his case in this way and has chosen to join 
 several defendants, because they are more or less connected with some part of the 
 subject matter of the action, although not connected with the whole of it, that is 
 the mode in which he baa elected to frame his case for his own convenience, and it 
 does not then at all follow as a matter of course that he is at liberty to retire from 
 it, as to any portion of the case, and say, ' I should like to try one part of it only, 
 and to leave the defendant afterwards to be subject to a second or third trial to try 
 the rest of it.' I think the defendant has, speaking generally, a right to answer, 
 ' You ought to have thought of this before you brought your action or put in your 
 statement of claim. If you wanted any part of the action to be tried separately, 
 you should have brought a separate action.' I do not wish to be understood as 
 saying that subsequent events may not have occurred which may justify the plain- 
 tiff in making the application, but subject to that, it appears to me, as a general 
 rule, that the plaintiff nas no right to make the application if the defendant objects. 
 But if the plaintiff comes into Court and says this, 'Since the commencement of my 
 action subsequent events have occurred which convince me that I had much better 
 give up the right of action as against particular defendants, and limit my action to 
 the trial of certain issues only, uad ask the Court to try thone issues,' it does not 
 appear to me the defendants have any right to complain. Tliere will be only one 
 trial, therefore there will be no increased costs ; and, as against those defendants, 
 they get the benefit of the abandonment of the further relief asked against them, 
 because the plaintiff says that he will limit his relief to what will result from the 
 issues which are to be tried. So far as those defendants are concerned it must be 
 a benefit — that is a benefit in one sense only, a benefit theoretically, because prac- 
 tically it is no benefit — and if they are wrong the sooner the action is tried against 
 them the worse for them, and the greater the delay the better for them ; but I am 
 not now putting it in that way at all." 
 
 An application to have one issue in an action tried before another can only be 
 granted on very special grounds. Where a defendant in a partnership action set 
 up, by counter-claim, an agreement by the plaintiff for sale to the defendant of his 
 (the plaintiff's) interest in the partnership at a stated price: — Held, that the 
 defendant was not entitled to have the issue raised by his counter-claim tried before 
 the plaintiff's issues in the action, Piercy v. Young, L. R. 15 Ch. D. 475. 
 
 In Dent n Sovereign Life Assurance Company, W. N. (1879) 33, an action was 
 brought to try the validity of a policy of assurance on the plaintiff's life, granted 
 by the defendant company in September, 1877, the validity of which was disputed 
 by defendants on the ground that it was obtained by the misrepresentation of the 
 assured as to his health and habits. After the plaintiff had giver notice of trial, 
 he asked that the issue, whether the assured was a man of temperate or (as alleged 
 by the defendants) of intemperate habits, might be tried in Middlesex by a Judge 
 and jury and that the trial of the other issues might stand over in the meantime. 
 The Vice-Chancellor refused the motion with costs. The plaintiff had already 
 given notice of trial in a particular manner ; no sufficient reason for changing his 
 option was assigned ; and the particular issue could not be severed from the rest of 
 the case so as to admit of being heard separately by a jury. 
 
 Discretion not inio'fered with on appeal. — The plaintiff brought an action in the 
 Chancery Division to set aside an agreement, on the ground that he liad been 
 induced to enter into it by the fraudulent representations of the defendant. The 
 pleadings being closed, the plaintiff gave notice of trial by jury. The defendant 
 thereupon moved that the action 'might be tried by the Judge without a jury. 
 The Vice-Chancellor having held that the case might be so tried :— Held on appeal 
 that the discretion of a Judge as to the mode in which an action attached to his 
 branch of the Court can be most conveniently tried, will not be interfered with, 
 except in a very strong case, Ruston v, Tobin, L. R. 10 Ch. D. 558. 
 
^ 
 
 TRIAL. 
 
 301 
 
 257. 
 
 4!. Every trial of any question or issue of fact by a jury *• a^xxi. 
 shall be held before a single Judge, unless such trial be specially "• ** 
 ordered to be held before two or more Judges. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 7. 
 
 One counsel only will be heard on each side upon the trial of a question of fact, 
 Conington v. Gilliat, L. R. 1 Ch. I). 694. 
 
 358. 
 
 5. Notice of trial shall state whether it is for the trial of the 
 action or of issues therein ; and the place and day for which it 
 is to be entered for trial. It may be in the Form No. 27 in 
 Appendix (B), with such variations as circumstances may re- 
 quire. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 8. 
 
 259. 
 
 6. Ten days' notice of trial shall be given, unless the party to 
 whom it is given has 'consented to take short notice of trial ; 
 and shall be sufficient in all cases, unless otherwise ordered 
 by the Court or a Judge. Short notice of trial shall be 5 
 
 days' notice. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 9 (e). 
 
 By the Common Law Procedure Act, R. S. 0. c. 50, s. 244, the notice of trial 
 was eight days, the first and last days being inclusive, two days, being by s. 58 added 
 where the notice was served upon the Toronto agent of the attorney. In Chancery 
 the notice of trial was fourteen days, G. O. Chy. No. 163, and that meant fourteen 
 clear days. Beard v. Gray, 3 Ch. C'h. R. 104. The notice of hearing of causes set 
 down by way of motion for decree, on bill and answer, for argument of demurrer 
 on appeal from Master's report or for re-hearing, was seven days, G. 0. 
 Chy. No. 410. 
 
 "10 days." — As to computation of time, see O. LII. 
 
 " Unless othenoise ordered." — The Court or a Judge has power to enlarge or 
 abridge the time appointed by the rules for doing any act or taking any pro- 
 ceedings, 0. LII., r. 8. 
 
 ^^ Court or a Judge." — See notes to 0. IV., r. 1 (a). 
 
 • ••• 
 
 ::;o 
 
 •n 
 
 • If 
 
 360. 
 
 7. Notice of trial shall be given before entering the action 
 for trial. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 10. 
 
 Either party may give notice of trial, O. XXXI., r. 2 ; or enter the action for 
 trial, lb,, r. 8. 
 
302 
 
 JUDICATURE ACT. 
 
 O. XXXI. 
 
 B. N. 
 
 361. 
 
 8. After notice of trial is given either party may enter the 
 action for trial. If both parties enter tne action for trial, it 
 shall be tried in the order of the plaintiffs entry. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 15. 
 
 363. 
 
 9. On the day before the day for holding the Court at which 
 the action is to be tried, the party entering the action for trial 
 shall deliver to the proper officer one copy of the whole of the 
 pleadings in the action, for the use of the Judge at the trial, 
 such copy to be certified as a true copy by the officer having 
 charge of the pleadings filed. 
 
 See Eng. R, Sup. C, O. XXXVI., r. 17; Eng. R. Sup. C, Dec. 1875, r. 14. 
 
 Formerly in Chancery the Judge used the original papers on the files of the 
 Court. In Common Lavr, however, a record was prepared for the use of the Judge. 
 In England two copies of the pleadings have to Se filed at the time of entering the 
 action. Eng. R. Sup, C, O. XXXVI., r. 17; Dec. 1875, r. 14. 
 
 m 
 
 ;«:: 
 
 363. 
 
 10. Where the Judges consider that public convenience so 
 requires, provision may be made for the trial at a separate time, 
 or before another Judge, of the actions from the Chancery 
 Division. 
 
 364. 
 
 11. Actions in all the Divisions shall be entered not later 
 than the third day next before the first day of the Assizes or 
 sittings ; but the Judge may permit any action to be entered 
 after the time above limited, if upon facts disclosed on affidavit, 
 or on the consent of both parties, he sees fit to do so. This 
 Rule shall be construed to apply to County Courts. 
 
 See R. S. O., c. 60, 8.'248. 
 
 " Not later than the third day." — As to computation of time, see 0; LII. Under 
 the former Chancery practice causes had to be entered 14 days prior to the sittings. 
 In Common Law records might be entered up to noon of the commission day, but 
 not prior to 4 days before the commission day, R. S. 0., c. 50. s. 245. 
 
 366. 
 
 12. Where the Deputy Clerk of the Crown and Deputy 
 Registrar in any County are not the same person, all actions 
 shall be so entered with the Deputy Clerk of the Crown, 
 except in cases under Rules 10 and 13, but the Deputy 
 
 ill. 
 
TRIAL. 
 
 303 
 
 Hegistrar shall attend the trial of actions brought in the •• ^txxi. 
 Chancery Division, and shall be entitled to the same fee as if "•**''• 
 the cause had been set down with him for hearing. 
 
 See sec. 64 of the Act as to Deputy Clerks and Deputy Registrars. 
 
 266. 
 
 13. In case of pro vision being made for the trial at a separate 
 time and place of actions brought in or assigned to the Chan- 
 cery Division, the actions shall be entered for trial with the 
 Registrar, or Deputy Registrar, as the case may be, according to 
 the present practice of the Court of Chancery. 
 
 W 
 
 267. 
 
 14. The party entering any action for trial shall indorse on 
 the copy of the pleadings delivered as aforesaid, whether 
 the matter for trial is an assessment of damages, or an unde- 
 fended issue, or a defended issue; t^nd the officer with whom the 
 action is so entered shall make two lists, and enter each action 
 in one of the said lists, in the order in which the actions are en- 
 tered with him; and in the first list he shall enter all the assess- 
 ments and undefended issues, and in the second list all defended 
 issues, and the Judge at the trial may call on the actions in the 
 first list at such time and times as he finds most convenient for 
 disposing of the business. 
 
 SeeR. S. O., c. 50, s. 249. 
 
 268. 
 
 15. If, when an action is called on for trial, the plaintiff ap- 
 pears, and the defendant does not appear, then the plaintiff 
 may prove his claim, so far as the burden of proof lies upon 
 him. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 18. 
 
 " The burden of proof ." —The wide distinction between the English and Ontario 
 system of pleading must here be observed. In England a defendant by his state- 
 ment of defence simply "put the plaintiff to proof of his several allegations in his 
 statement of claim." He did not app&ai' at the trial, but service of notice of trial 
 on him was proved : — Held, that the defendant had admitted the facts alleged in 
 the statement of claim and that the plaintiff was entitled to judgment without 
 adducing any evidence in support of his case, Harris v. Gamble, L. R. 7 Ch. D. 
 877. This case is no doubt founded upon the English rule that every statement 
 not denied is to be taken an admitted. In Ontario, however, any statement not 
 denied is deemed to be denied if not admitted. The authority quoted would no 
 doubt be inapplicable to the Ontario practice, see O. XV,, r. 24 ; see Hakewell v. 
 Webber, 9 Efa. 541 ; Brown v. Smith, 5 Jur. 1195 ; Hughes v. Jones, 26 Beav. 24. 
 
 When a defendant does not appear at the trial it is not necessary for t'le plaintiff 
 to prove service of notice of trial ; the power of the Court to set aside the proceed- 
 
 :;:d 
 
304 
 
 O. XXXI. 
 B. lA. 
 
 JUDICATURE ACT. 
 
 ings is a sufficient protection, Chorlton v. Dickie, L. R. 13 Ch. D. 160 ; and see 
 cases in notes to next rule. 
 
 If a party appealing from tlie decision of a Judge at Chambers does not appear 
 in the High Coui-t to support the motion, and judgment ia bnerefore pronounced 
 iigainst him in his absence, he cannot afterwards appeal to the Court of Appeal 
 against the judgment of the High Court. The Court of Appe:>^ has no jurisdiction 
 to afford him relief, Walker and others v. Budden, L. B. 5 Q. '.i. D. 267. 
 
 
 ii ^ 
 
 , 
 
 1 i 
 
 ' 
 
 A ■'■. 
 
 
 \\- 
 
 
 i? ' 
 
 
 M A 
 
 
 
 
 '■1 ;; 
 
 
 
 
 269. 
 
 IQ. If, when an action is called on for trial, the defendant 
 appears, and the plaintiff does not appear, the defendant, if he 
 has no counter-claim, shall be entitled to judgment dismissing 
 the action, but if he has a counter-claim he may prove 
 such claim so far as the burden of proof lies upon him. 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 16. 
 
 In Chancery if the cause is called on to be heard, and the plaintiff makes default, 
 and by reason thereof the bill is dismissed, the dismissal i<n to be equivalent to a 
 dismissal on the merits, unless the Court orders otherwise, and may be set up 
 in bar to another suit for the same matter, G. O. Chy. No. 184. Before the 
 bill was dismissed it was necessary to produce an affidavit proving that notice of 
 the hearing had been served, Rigg v. Wall, 3 M. & C. 505 ; but see Charlton v. 
 Allen, 9 Ha. app. 67 ; Bell v. Hornby, 14 Bpav. 439. Under this rule, however, 
 when an action is sailed on for trial and the plaintiff does not appear the defendant 
 is entitled to have judgment in his favour with costs, without proving that he had 
 been ser^'ed with notice of trial, James v. Crow, L. R. 7 Ch. D. 410 ; overruling 
 Cockle V. Joyce, L. R. 7 Ch. D. 56 ; and see re Lows, L. R. 7 Ch. D. 160 ; and see 
 Chorlton r. Dickie, L. R. 13 Ch. D. 160. 
 
 After issue had been joined and notice of trial given by the sole plaintiff in an 
 action he filed a liquidation petition under which a trustee of his property was 
 appointed. When the action came on for trial no one appeared for the plaintiff or 
 for the trustee, and there was no evidence that any notice of the action had been 
 served on the trustee :— Held, that Order XLI v . , r. 1, applies only when the 
 cause of action survives or continues in some person who is before the Court, and 
 that the only order which could be made was to strike the cause off the list, 
 Zildridge v. Burgess, L. R. 7 Ch. D. 411 : and see Chorlton v. Dickie, L. R. 13 Ch. 
 D. 160. 
 
 When a case was called on no counsel had been instructed for the plaintiff and 
 no papers had been delivered. The defendant appeared and the bill was dismissed 
 with costs. Subsequently, counsel appeared for the plaintiff and asked that the 
 cause might be restored to the paper, and stated that one of the firm of solicitors 
 engaged for the plaintiff had been seriously ill, and the other partner was not 
 acquainted with the facts of the case, and inadvertently omitted to make the 
 necessary arrangements for the hearing. Malins, V.-C, said that to refuse to 
 reinstate the cause might do great injustice, and he allowed it to be restored to the 
 paper on payment of costs of the day and the costs of this application. Birch v, 
 WiUiams, W. N. (1876) 168. 
 
 When an action which had been made a test action (for the purpose of deciding 
 the rights of the plaintiffs in a number of similar actions against the same defen- 
 dants) came on for trial, the plaintiff declined to proceed, on the ground that he 
 was not in a fit state of health to attend and be examined as a witness. On a 
 previous occasion he had moved for and obtained a postponement of the trial on the 
 ground of his ill-health. A week before the trial an application by the plaintiff, in 
 Chambers, to stay all proceedings in the action had been refused by Malins, V.-C, 
 on the ground that the plaintiff was not dominus litis, but a trustee for the plaintiffs 
 in other actions. At the trial, the plaintiff asked for a postponement, or that an 
 order of discontinuance might be made under O. XIX. :— Held, that the Court could 
 not regard the rights of the plaintiffs in other actions, but must act as if the plaintiff 
 had not appeared at the trial, and must dismiss the action with costs, Robinson v. 
 Chadwick, L. R. 7 Ch. D. 878. 
 
TRIAL. 
 
 370. 
 
 305 
 
 17. Any verdict or judgment obtained where one party does o. xxxi. 
 not appear at the trial may be set aside by the Court or a *• *''• 
 Judge upon such terms as may seem fit ; such application n\ay 
 
 be made at the Assizes or sittings at which the trial took place, 
 or in Toronto. 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 20. 
 
 "itfay he set aside."— Where^ a juclgment obtained through the plaintiff's 
 default in appearing is set aside, it will be on payment of the costs of the day and 
 of the application, Cockle v. Joyce, L. R. 7 (Jh. D. 56. A defendant was not 
 represented at the trial of an action because his solicitor was ignorant of the fact 
 that in pursuance of an order of the Lord Chancellor the action had, with others, 
 l)een transferred from one Judge of the Chancery Division to another, and therefore 
 only watched the list before the former Judt^e, the judgment was set aside on pay- 
 ment of the costs of the day and of the ap])lication, but not of the appeal in which 
 he was successful, Burgoine v. Taylor, L. R. 9 Ch, D. 1. 
 
 Where a defendant had instructed a solicitor to enter appearance and defend an 
 action, and the solicitor, after entering appearance, neglected the action, and 
 allowed it to come to trial without communicating with the defendant or appear- 
 ing or instructing counsel to appear at the tri&l, and the defendant did not ascertain 
 that the action had been tried and judgment recovered against him with costs, 
 until more than six days after the trial, he personally having been guilty of no 
 negligence, and having made an application for enlargement of the time within six 
 days of his having heard that the trial had taken jjlace, the Court granted an 
 extension of the time to enable him to apply to set aside the judgment, Mitchell v. 
 Wilson, 25 W. R. 380. 
 
 Where a plaintiff, against whom judgment by default had been given, applied 
 to have the judgment set aside and the action restored to the trial list, on the 
 ground that his solicitor, acting under a belief that the action was some way down 
 in the cause list, and that negotiations which were then going on would result in a 
 settlement of the action, had deferred instructing counsel to appear :— Held, that 
 the circumstances were sufficient to justify the Court in settmg aside the judg- 
 ment and restoring the action to the list, on the payment, by the plaintiff, of the costs 
 of the day and of the application, Wright v. Clifford, 26 W. R. 369. 
 
 And as to cases in which the client will be relieved from embarrassment 
 caused by the negligence of his solicitor, see notes to sec. i!8 of the Act. 
 
 _ It is incumbent on the Court to take care that the same subject should not be put 
 in"a course of repeated litigation ; and that, with a view to the termination of a suit, 
 the necessity of using reasonably active diligence in the first instance, should lie 
 imposed upon parties. Where, therefore, a defendant did not appear at the hearing 
 of the cause, and a decree was pronounced in favour of the plaintiff, and three 
 months afterwards the defendant applied to open publication, so as to let in 
 proof of a document of the existence of which he was aware, and a copy of which 
 he had in his possession, the Court, under the circumstances, refused tne applica- 
 tion with costs, Colonial Trusts v. Cameron, 21 Gr. 70. 
 
 " Court or a Judge.''— See notes to O. IV., r. 1 (a). 
 
 271. 
 
 18. Where, through accident or mistake or other cause, any 
 party omits or fails to prove some fact material to his case, the 
 Judge may proceed with the trial, subject to such fact being 
 afterwards proved at such time, and subject to such terms and 
 conditions as to costs and otherwise, as the Judge shall direct ; 
 and if the case is being tried by a jury, the Judge may direct 
 
 20 
 
 
 
m 
 
 
 i 
 ( 
 
 \>'i 
 
 
 306 
 
 O. XXXI. 
 B. 18. 
 
 '''■■ 
 
 .X, t)l|jl> 
 
 t 
 
 r 
 
 li 
 
 JUDICATURE ACT. 
 
 the jury to find a verdict a8 if such fact had been proved, and 
 the verdict shall take effect on such fact being afterwards 
 proved as directed; and if not so proved, judgment is to be 
 entered for the opposite party, unless the Court or a Judge other- 
 wise directs. This Rule shall not apply to an action for libel. 
 
 There is no provision in the English practice similar to this. 
 '.' Court or a Judge."— See notes to O. IV., r. 1 (a). 
 
 19. The Judge, if he think it expedient for the interest of 
 justice, may postpone or adjourn the trial for such time, and 
 upon such terms, if any, as he shall think fit. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 21 ; R. S. O., c. 50, s. 259. 
 
 The Courts have always exercised the right to postpone the trial of an action in 
 consequence of the absence of a material witness, when the application is made 
 before the day of trial, and on sufficient affidavits, Thompson v. Lewis, 2 C. L. R. 
 707 ; O'Keefe v. O'Brien, 2 L. J. 231. The power of adjournment on the day of 
 trial, when necessary in the interests of justice, was given by the Common Law 
 Procedure Act, 1856, 19 Vic. c. 48, s. 158, and is continued by this Order. 
 
 Absence of Witness.— When a cause is postponed on account of the absence of a 
 necessary witness, and diligent efforts to secure the attendance of such witness 
 who is residing within the jurisdiction are shewn to have been made, the costs of 
 putting off the examination will, as a general rule, be costs in the cause. In all 
 other cases the costs will be disposed of according to circumstances, and in the dis- 
 cretion of the Judge, Pattison v. McNab, 12 Gr. 483. But where the plaintiff as- 
 certained on Sunday that a witness who was his mother, was confined to her bed 
 aud unable to attend at the sittings which began on the Tuesday following, but failed 
 to give notice of this fact to the defendant, a motion made by the plaintiff to j)ost- 
 pone the hearing was granted only on the terms of his paying the coats, McMillan 
 V. McDonald, 22 Gr. 362. On an application to put off a trial on the ground of the 
 absence of a witness it is not sufficient to shew that the witness is material, and 
 may, and probably will, give important evidence, or to swear that his evidence will 
 be material and necessary, without shewing that it will assist the case of the person 
 making the application, Kerr v. Grand Trunk Railway Company, 4 P. R. 303. 
 
 Ac^ournment to alloto parties to be added. — AVhere at the hearing of a cause it 
 appeared from the plaintiff's evidence that certain persons named in the will of the 
 ancestor of the plaintiff were necessary parties, and had not been brought before 
 the Court, leave was given to the plaintiff to amend by adding those parties, nut- 
 withstanding the fact that the effect of permitting such amendment would be to 
 enable the plaintiff to vary to some extent the case made and the relief prayed, 
 though not to vary the case or to pra^ any different relief as against the present 
 defendants ; and as the defect of parties did not appear by the bill : — Held, that 
 leave could only be granted on payment of the costs of the day, Chisholm v. Sheldon, 
 1 Gr. 108, 
 
 The party who applies for the adjournment must pay all the costs incurred by 
 the action having been in the paper for hearing, and not merely a fixed sum for the 
 costs of the day, Lydall v. Martinson, L. R. 5 Ch. D. 780. 
 
 Where it is plain on the face of a bill that a suit is defective for want of parties, 
 a defendant, raising the objection at the hearing, is entitled to the costs of tne day, 
 although he may not have taken the objection by his answer, as it is the duty of 
 the plaintiff to make his suit perfect and not the duty of the defendant to give 
 notice of the objection, per Jessel, M. R., Rowsell v. Morris, L. R. 17 Eq. 20. 
 But when a bill is filed against a trustee by parties claiming adversly to 
 his cestui* que trust, without making them parties to the bill, it is the duty 
 of the trustees to object that the owners of the estate are not before the Court ; 
 where therefore a trustee under such circumstances neglected to make the objec- 
 tion, the cause was notwithstanding ordered to stand over, with leave to amend by 
 
^^' 
 
 TRIAL. 
 
 307 
 
 adding parties, without costs Cleveland v. McDonald, 1 Gr. 416. Where the Court O. XXXI. 
 finding it impossible to make such a decree as was desired, as the record then stood, B, 19, 
 adjourned the cause so that the plaintiff mi^ht amend his bill by adding parties, 
 the order was made without costs, the objection not having been raised by the de- 
 fendant, Rogers v. Rogers, 2 Gr. 137. After the plaintiff had entered the record 
 for trial the defendant took out an order staying proceedings until security for 
 costs were given, whereupon the record was withdrawn : — Held, that the defend- 
 ant was not entitled to costs of the day, Fitzgerald v. Ludwig, 7 P. R. 187. The 
 inability properly to calculate the damages to the plaintiff from a personal injury, 
 owing to a sufficient time not having elapsed from the receipt of the injury, is a 
 sufficient ground for postponing the trial, Speersv. Great Western R, W. Co., 6 P. 
 R. 170. The usual undertaking given by the plaintiff on obtaining the order for 
 interim alimony (viz., to proceed to a hearing at the first possible sittings), was ex- 
 tended to the next sittings, where the defendant had failed, and wilfully refused 
 to pay interim tdimony and disbursements which he had been directed to pay, 
 Bowslaugh V. Bowslaugh, 6 P. R. 200. 
 
 An order having been made by a Judge in Chambers postponing the trial on 
 payment of the costs of the application only, the Court refused to vary the order, 
 80 as to to compel payment of the costs of preparing for the trial, although they 
 thought the order should have been so made in the first instance, no notice having 
 been given of the intention to move, McKenzie v. Stewart, 10 IJ. C. R. 634. Ap- 
 plications to postpone trial in outer counties should not be entertained in Toronto 
 when trial just coming on, lb. 
 
 As to the power of a Judge to order the postponement of an interpleader issue, 
 when the interpleader order directs it to oe tried at a particular sittings, see 
 Robinson v. Richardson, 32 U. C. Q. B. 344. 
 
 Interesta of Justice. — As to this, see Whitelaw v. 
 U. C. L. J. N. S. 199. 
 
 373. 
 
 National Insurance Co., 13 
 
 20. Upon the trial of an action, the Judge may, at or after 
 the trial, direct that judgment be entered for any or either 
 party, or adjourn the case for further consideration. 
 
 See Eng. R. Sup. C, Dec. 1876, r. 3; R. S. 0., c. 50, s. 262. 
 
 '^Direct that judgment be entered,^^ — For forms of judgment in such a case, see 
 Forms, Nos. 155, 156, 157. If no direction is given judgment must be obtained upon 
 motion, see 0. XXXVI. 
 
 21. The Registrar, Clerk of Assize or other officer present 
 at the trial shall enter all such findings of fact as the Judge 
 may at the trial direct to be entered, and the directions, if 
 any, of the Judge as to judgment, and the certificates, if any, 
 granted by the Judge, such entry to be made in a book to be 
 kept for the purpose, and also to be indorsed on the copy of 
 the pleadings delivered under Rule 9 of this order. 
 
 See Eng. R. Sup. C, O. XXXVL, r. 23. 
 
 275. 
 
 22. The said indorsement, or the certificate of the said 
 officer or the certificate of the Judge, shall be a sufficient 
 authority to the proper officer for entering judgments to 
 
 
308 
 
 JUDICATURE ACT. 
 
 •. xzxi. 
 
 B. 99. 
 
 i 
 
 
 |i li •/ 
 
 mf 
 
 ill I 
 
 enter judgment accordingly. The certificate may be in the 
 Form No. 174 in Appendix (I) hereto. 
 
 See Eng. R. Sup. C, O. XXXI., r. 24. 
 
 276. 
 
 23. Where any cause or matter, or any question in any cause 
 or matter, is referred to a referee, he may, subject to the order 
 of the Court or a Judge, hold the trial at, or adjourn it to, any 
 place which he may deem most convenient, and have any in- 
 spection or view, either by himself or with his assessors if any, 
 which he may deem expedient for the better disposal of the 
 controversy before him. He shall, unless otherwise directed 
 by the Court or a Judge, proceed with the trial de die in 
 diem in a similar manner as in actions tried by a jury. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 30. 
 
 " Eeferred to a Jieferee." — See s. 47 et seq., and notes as to power of referee; see 
 alsoO. XXIX., r. 2. 
 
 " Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 By G. 0. Chy. No. 214, as soon as the Master has entered upon the hearing of 
 a reference he is to proceed therewith to the conclusion without interruption, where 
 that is practicable ; and when any reference cannot be concluded in a single day, the 
 Master is to proceed de die in diem, without a fresh warrant, unless he is of opinion 
 that an adjournment other than de die in diem would be proper, and conducive to 
 the ends of justice ; and when an adjournment is ordered the Master is to note in 
 his book the time and reason thereof. 
 
 Order XXXVL, rule 30 (Ont. Act. 0. XXXI., r. 23), of the Rules of Court 
 under the Judicature Acts, relating to trials by referees, is directory only. There- 
 fore, where a special referee did not sit de die in diem, as prescribed by that rule, 
 the Court refused to set aside the award, Robinson v. Robinson, 35 L. T. N. S. 337 • 
 
 211. 
 
 24. Subject to any order to be made by the Court or Judge 
 ordering the same, evidence shall be taken at any trial before 
 a referee, and the attendance of witnesses may be enforced by 
 subpoena, and every such trial shall be conducted in the same 
 manner, as rearly as circumstances will admit, as trials before 
 a Judge of tne High Court, but not so as to make the tribunal 
 of the referee a public court of justice. 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 31. 
 
 278. 
 
 25. Subject to any such order as last aforesaid, the referee 
 shall have the same authority in the conduct of any reference 
 or trial as a Judge of the High Court when presiding at any 
 trial before him. 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 32. 
 
 As to powers of Referees, see s. 47 et seq. and notes, and 0. XXIX. , r. 2. 
 
TRIAL. 
 
 809 
 
 279. 
 
 26. Nothing in these Rules contained shall authorize any ® 
 referee to commit any person to prison or to enforce any "* *** 
 order by attachment or otherwise. 
 
 See Eng. R. Sup. C, O. XXXVI., r. 33. 
 
 ' 280. 
 
 27. The referee may, before the conclusion of any trial be- 
 fore him, or by his report under the reference made to him, 
 submit any question arising therein for the decision of the 
 Court, or state any facts specially with power to the Court to 
 draw inferences therefrom, and in any such case the order to 
 be made on such submission or statement shall be entered as 
 
 the Court may direct. 
 
 «f 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 34, as amended by Eng. R. Sup. C, 
 March, 1879, r. 5; R. S. O., c. 50, s. 211. 
 
 281. 
 
 28. The Court shall have power to require any explana- 
 tions or reasons from the referee, and to remit the cause or 
 matter, or any part thereof, for re-trial or further considera- 
 tion, to the same or any other referee ; or the Court may decide 
 the question referred to any referee on the evidence taken 
 before him, either with or without additional evidence, as the 
 Court may direct. 
 
 See Eng. R. Sup. C, 0. XXXVI., r. 34. 
 
 The Referee acts in a qitasi mdicial capacity, and is not to be examined in the 
 action, Broder i;. Saillard, L. R. 2 Ch. D. 692. 
 
 The old law and practice with regard to references to arbitration are not 
 abolished by the Judicature Act, and, consequently, where a cause is referred to 
 an arbitrator for decision according to the old practice, the arbitrator cannot be 
 called on to report to the Court with regard to the matter referred to him, but his 
 decision is final, Cruikshank v. The Floating Swimming Baths Co., L. R. 1 C. P. D. 
 
 Where a Judge has referred the amount of damages in an action to a Special 
 Referee, he may accept it wholly or partially, or, if dissatisfied with it, he may 
 wholly disregard it, or remit it to the Referee for amendment ; but he has no power 
 to alter or vary it, Dunkirk Colliery Co. v. Lever, L. R. 9 Ch. D, 20. 
 
 
 
 
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 ». XXXII. 
 
 1.1. 
 
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 I 
 
 
 JUDICATURE ACT. 
 
 ORDER XXXII. 
 Evidence Generally. 
 
 18813. 
 
 1. In the absence of any agreement between the parties, and 
 subject to these Rules, the witnesses at the trial of any action 
 or at any assessment of damages, shall be examined viva voce and 
 in open Court, but the Court or a Judge may at any time for 
 sufficient reason order that any particular fact or facts may be 
 proved by affidavit, or that the affidavit of any witness may be 
 read at the hearing or trial, on such conditions as the Court or 
 Judge may think reasonable, or that any witness whose attend- 
 ance in Court ought for some sufficient cause to be dispensed 
 with, be examined before an examiner ; provided that where 
 it appears to the Court or Judge that the other party bona 
 fide desires the production of a witness for cross-examination, 
 and that such witness can be produced, an order shall not be 
 made authorizing the evidence of such witness to be given by 
 affidavit. 
 
 See Eng. R. Sup. C, O. XXX VIL, r. 1; G. O. Chy. No. 17G. 
 
 "Any agreement." — The agreement must be a formal agreement in writing, New 
 Westminster Brewery Co. z^. Hannah, L. R. 1 Ch. D. 278. 
 
 The guardian ad litem of an infant defendant is competent to give a consent 
 requisite for taking the evidence by affidavit, KnatchbuU v. Fowle, L. R. 1 Ch. D. 
 
 Where the parties agreed that evidence should be taken by affidavit, this was 
 held equivalent to an agreement that the action should be tried without a jury, 
 since affidavits could not otherwise be used except under npecial circumstances, 
 Brooke v. Wigg, L. R. 8 Ch. D. 510. 
 
 " Any coition." — Where, in a pending case, replication was not filed nor notice 
 of motion for service given before the Judicature Act came into force, the Court has 
 not the power, except on the consent of the parties, to direct that the evidence should 
 be taken otherwise than viva voce, Pattison v. Wooler, L. R, 1 Ch. D. 464 ; but the 
 Court can direct a party who unreasonably refuses to consent to have the evidence 
 taken by affidavit, to pay the costs of the parties who moved for leave to do so, 
 Pattison v. Wooler, L. R. 2 Ch. U. 536. 
 
 283. 
 
 2. Upon any motion, petition or summons, evidence may be 
 given by affidavit ; but any person havini,' made an affidavit 
 to be used, or which shall be used on any mo -ion, petition or 
 other proceeding before the court, shall be bound to attend for 
 the purpose of being cross-examined, on being served with a 
 writ of subpoena ad testificandum, but the court, nevertheless, 
 may act on the evidence before it at the time, and may make 
 such interim order, or otherwise, as appears necessary to meet 
 the justice of the case. 
 
 See Kng. R. Sup. C, 0. XXXVII., r. 2 ; G. O. Chy. No. 268. 
 
r^ 
 
 '^ 
 
 EVIDENCE GENERALLY. 
 
 311 
 
 Each statement in an affidavit, which ia to be used as evidence on any proceed- O. XXXII> 
 inK before the Court, or before a Judge, or before an officer of the Court, is to shew h. tl. 
 the means of knowledge of the i>er8on making the statement, G. O. Chy. No. 259. 
 
 Where there is no personal knowledge, the words " I am informed " are the 
 same as "I believe," Woodhatch v. Freeland, 11 W. R. 398. 
 
 See also as to evidence by affidavit, O. XXXIV. 
 
 Scandalous atTidavit taken off the files, Goddard v. Parr, 24 L. J. Ch. 783 ; 
 Kemick v. Kemi?k, 12 W. R. 336 ; scandalous matter expunged, re Bailey's 
 Settlement, 3 W. R. 133. See Ord. XXIII., r. 1. 
 
 " Affidavit."— As to form of affidavits, see rule 3 of. this Ord^r. As to filing affi- 
 davits, cross-examination on, etc., see O. XXXIV. 
 
 " Court or a Judije." — See notes to O. IV., r. 1 (a). 
 
 "Desires the production of a loitness." — Where one party desires the production 
 of a witness for cross-examination, the Court has no power to order an affidavit, 
 used on a previous application, to be read at the trial, Blackburn Union v. Brooks, 
 L. R. 7 Ch. D. 68. 
 
 Forms, — For form of subpoena ad testificandum, see Forms, No. 99. For form 
 of subpaana duces tecum, see Forms, No. 102. For form of pnecipe for Habeas 
 Corpus ad testificandum, see Forms, No. 91. For form of Habeas Corpus ad testifi- 
 candum, see ]?urm8, No. 104. For form of order for examination of witnesses 
 liefore trial, see Forms, No. 133. 
 
 384. 
 
 3. Affidavits shall be confined to such facts as the witness is 
 able of his own knowledge to prove, except on interlocutory- 
 motions, on which statements as to his belief, with the grounds 
 thereof, may be admitted. The costs of every affidavit which 
 shall unnecessarily set forth matters of hearsay, or argumenta- 
 tive matter or copies of or extracts from documents, shall be 
 paid by the party filing the same. 
 
 385. 
 
 4. The Court or a Judge may, in any cause or matter where 
 it shall appear necessary for the purposes of justice, make 
 any order for the examination upon oath before any officer of 
 the Court, or any other person or persons, and at any place, of 
 any witness or person, and may order any deposition so taken 
 to be filed in the Court, and may empower any party to any 
 such cause or matter to give such deposition in evidence there- 
 in, on such terms, if any, as the Court or Judge may direct. 
 
 See Eng. R. Sup. C, 0. XXXVII., r. 4 ; G. O. Chy. Nos. 266—269. 
 
 Hitherto in Chancery a party to a cause might by a writ of subpoena ad testifi- 
 candum or duces tecum require the attendance of a witness before the Court, or 
 before a Master or an Examiner, for the purpose of using his evidence upon any 
 motion, petition, or other proceeding before the Court, G. O. Chy. No. 266 ; but 
 no evidence to be used at the hearing other than the examination of a party was to 
 be taken, unless by an order first obtained upon special grounds, G. O. Chy. 166. 
 And in Common Law it was neces:<ary to obtain an order, R. S. 0., c. 50, s. 179. 
 
 The present rule is probably intended to apply to evidence for use upon motions 
 as well as at the trial (note the heading of the order, the fact that the rules deal 
 with evidence both at the trial and upon motions, and the fact that one of the 
 
 II 
 
 ' ; 
 
 
:. ^:| 
 
 
 312 
 
 TUDICATURE ACT. 
 
 ! S 
 
 ii ; 
 
 iilf 
 
 ©. XXXf I» references at the foot of the rule under consideration in the Act, as issued fc- 
 K. 4, consideration, was to G. O, Chy. Nos. 2(>tj — 209, which deal with examination ot 
 
 witnesses upon motions). 
 0. XXXIII. 
 
 Orders for commissions are separately provided for by 
 
 Be bene esse. — A witness's depositions de bene esse not taken down by the examiner 
 specially appointed in his own nandwriting, but taken down in the jiresence of the 
 parties, and certified by the examiner to have been read over to the witness and 
 signed by her in his presence, were ordered to be filed, Bolton v. Bolton, L. R. 
 2 Ch. D. 217. The examination of a witness dc bene esse is permitted where there 
 is danger of losing the testimony of an important witness from death, by reason of 
 age (as where the witness is seventy years old and upwards), or dangerous illness, 
 or where he is the only witness to an irajiortant fact. Where the reason for the 
 application is that the witness is dangerously ill, or over seventy years of age, the 
 order may be obtained ex parte, McKenna v. E veritt, 2 Beav. 188 ; Oliver v. Dickey, 
 2 Ch. Ch. R. 87 ; but unless the illness is dangerous notice must be given, Anderson 
 V. Anderson, 1 Ch. Ch. R. 291; so where the application was made because th^ 
 witness was about to lefve the jurisdiction, an ex parte order was refused, E.«rly v. 
 McGill, 1 Ch. Ch. R. 257. Where a material witness is going abroad it is a matter 
 of course, upon the application of a party to the cause, to make an order for his 
 examination dj bene esse, Grove v. Young, 3 D. & S. 397. On an apjilication for 
 an order to examine de bene esse on the ground that the witness is the only one 
 who can prove a fact, affidavits should be produced shewing the jiarticular facts 
 as to which he can give evidence, and that he is the only witness, Peiirson r. Ward, 
 1 Cox, 177 ; Hope v. Hope, 3 Beav. 317. Affidavits on information and belief, 
 without shewing grounds of belief, insufficient, Ja,me8on r. Jones, ;' Ch. Oh. R. 98. 
 The plaintiff may, in a proper case, obtain an order for the exitniination of a 
 witness de bene esse as roon as his liill is filed. Dew r. Clarke, 1 S. & S. 108 ; but 
 a defendant cannot obtain such an order till he has answered, Williams v. 
 Williams, 1 Dick. 92. All parties are entitled to notice of the time and place of 
 examination, Loveden v. Alilford, 4 Bro. C. C. 540. 
 
 In Coe's Pi..ctice of the Judge Chambers, 109, it is :*aid that an order may be 
 made ex p.rte on an affidavit of solicitor to the party applying, stating— 
 
 1. That A. B. is a necessary and material witness on behalf of tlie [plaintiff oc 
 defendant]. 
 
 2. T^at he is unable to give evidence in open Court by reason of [ani/ speciii 
 reason, Kiichas illticss, the nature of which must be stated, or nccessarifi) leaving the 
 country]. 
 
 3. Prayinj; that he may be examined befon C. D. . or, if abroad, that a 
 commission may issue. 
 
 The order requires notice to be given to tlie opposite solicitor of the time and 
 place of examination, anil further, that the examination, when taken, lie filed with 
 the Mas;ers ci the Court ; and provides that an office cojjv may be read and given 
 in cvide:ice ou the trial of the cause, saving all just exceptions. Proof of continued 
 absence or illness nust bo given at the trial, and for this purpose the affidavit of 
 the solicitor is deened suiilcient. 
 
 ORDER XXXIII. 
 
 Commissions to Examine Witnesses. 
 
 286. 
 
 o. xxxiir, 1. Upon an application for a commission to take evidence, 
 ■• '• the applicant is in the notice of motion to state the name of the 
 
 commissioner to whom he desires the commission to he issued ; 
 
 and where the opposite party desires to name another commis- 
 
COMMISSIONS TO EXAMINE WITNESSES. 
 
 313 
 
 may be 
 
 «ioner, he i», on the return of the motion, to give notice to the 
 applicant of the name of any other commissioner. 
 
 It has hitherto been the practice in Chancery first to obtain the order for a 
 commission, and then to strike commissioners' names before the Clerk of Records 
 and Writs. 
 
 When ' mnte/, — In June, 1876, in a case of Grant r. Banque Franco-Egyptienne, 
 20 W. E. >3, Brett, Grove, and Lindley, JJ., approved of the exercise of his 
 discretion by Mr. Justice Lindley at Chambers, where he refused a commission to 
 examine French witnesses as to ifrench Ip.w, the witnesses not being named ; and 
 Brett, J., said : "I apprehend that the granting of a commission is a matter of 
 discretion, and that the grounds on which a commiss ^n is granted or refused is 
 always a matter of comparison, namely, whether it is more convenient that the 
 commission should go than that witnesses should be examined before the tribunal 
 here, and the exercise of that discretion depends upon the circumstances of each 
 particular case." 
 
 A commission for the exaniination of a party to the cause on his own applica- 
 tion will not be granted unless it is clearly shewn that the commission would, 
 imder the circumstances, be conducive to the ends of justice. Price v, Bailey, (J Pr. 
 R. 256. 
 
 Issue was joined in an 'iction on the 11th of June, and the same day it was set 
 down for trial. ( )u the l?ith of November it was in the paper for trial, but on the 
 plaintiff's application, with the consent of the defendants, the trial was postponed 
 for a month. On the 13th of Decenil lor the plaintiff gave notice of motion for the ap- 
 pointment of a commission to take 1 evidence of himself and another witness, who 
 were in India, and that the trialmigl 'o postponed until the return of the commission. 
 A.t the hearing of the motion on ilie 17th of December the defendant offered to 
 consent to a postponement of the trial for two months, but this offer was declined : — 
 Held, that the plaintiff was too late in making th? application, and that, as he had 
 refused the defendant's offer, the motion mi. *t 1 .' refused with costs, Stewart v. 
 Ola^lstone, L. R. 7 Ch. D. 394. 
 
 The affidavit in support of a motion for a oommission to examine witnesses .it 
 Paris and Boulogne for the defendant company stated that certain Frenchmen 
 residing in Paris (named), and others residing in Paris and Boulogne (unnamed), 
 ^vere necessary witnesses. The defendant com])any was registered in England ; 
 tlieir Inisiness was in Pari-;. The Court ordered the commission to issue on the 
 defendants, if the plaintiff presse'l it, adding to their affidavit a st.atement that 
 great inconvenience and expense would otherwise be occasioned, Spiller (•. Paris 
 Skating Rink Company (Limited), 27 W. R. 225. 
 
 Fiirther examination of witness. — Where a witness ^vho had been previously 
 examined under a commfss'^ii, stated on affidavit thnt he had further evidence to 
 give, to correct or ex])lain his former evidence: — Held, a new commission should 
 isst' to further examine him, and that in such case he should be considered as a 
 witness for the party who desires to so re-examine him. Held, also, that strong 
 suspicion of a depraved motive in the witness for desiring to be re-examined was 
 not a sufficient groimd upon which to resist the application, Rogers r. Mannini;, J 
 Pr. R. 2. 
 
 CoKts of com,nission. —In Spiller r. Paris Skating Rink Company, 27 W. R. 225, 
 Malins, V. C, said:— "As to the costs of the connnissicm, the com]\iny was a 
 foreign one duly registered in London. If they had l)een plaintiffs perhaps they 
 should have given security for costs, but they were (I'fenc'fints, and there was no 
 suggesti(m that tliey were insolvent. Costs, therefore, must be reserved." 
 
 In Colborne r. Thomas, 4 Gr. In!*, however, the costs of a commission issued by 
 plaintiff to take evidence in a foreign country, were alloweil to him as part of the 
 costs of the cause. 
 
 In Fox V. Tonmto and Xipissing Railway Comjjany, 7 Pr. R 157, it was said 
 that the costs of executing a commission are entirely m the discretion of the Master ; 
 and where the amount paid to the commissicmer and his clerk for two sittingson 
 different days in London was twenty-two guineas, and the Master on taxation 
 diaallowed twelve, the Court refused to interfere. 
 
 O. XXXIII. 
 R. 1. 
 
 ;> 
 
 * .»«« 
 
 'D 
 
 If 
 
314 
 
 JUDICATURE ACT. 
 
 I 
 
 I 
 
 O. XXXIII. 
 B. ». 
 
 i.i ! 
 
 il 
 
 387. 
 
 2. Upon the hearing of the motion the Court or Judge (or 
 oflBcer before whom the motion is made) may order the iH.su' 
 of the commission directed to the persons so named or to such 
 other person or persons as may seem pioper. 
 
 For form of order for commission, see Forms, No. 129. 
 For form of pnecipe for commission, see Forms, No. 90. 
 For form of commission, see Forms, No. 103. 
 
 388. 
 
 3. The order or certificate for the issue of a commission is to 
 state the name of the commissioner to whom it is to be directed, 
 and whether +he examination of witnesses thereunder is to be 
 taken upon oial questions or upon written inttt >^ogatories, and 
 also whether or not notice of the execution thereof is to be 
 given to the opposite party ; and in case notice is to be so given, 
 then the name and the address of the person on whom such 
 notice is to be served are to be stated in the order. 
 
 ,1.: 
 
 :: 1555' 
 
 .■•.;';;a; 
 
 289. 
 
 4. The examination of witnesses under a commission is to be 
 taken upon written interrogatories, and upon sucli oral ques- 
 tions as may be put by either party upon the subject matter of 
 such interrogatories, or arising out of the answers thereto; or 
 in case all parties consent, the examination may be had alto- 
 gether upon oral questions. But all oral questions shall be re- 
 duced into writing and with the answers thereto returned with 
 the commission. 
 
 390. 
 
 5. Where the exanxination is to take place upon written in- 
 terrogatories, the interrogatories in chief are to be delivered to 
 the opposite party (unless otherwise ordered) at least (S days 
 before the issue of the commission ; and the cross-interroga- 
 tories are to be delivered to the opposite party (unless otherwise 
 ordered) within 4 days after the receipt of the interrogatories 
 in chief; and in default of cross-interrogatories being so de- 
 livered, the opposite party may send the commission without 
 cross-interrogatories. 
 
 " Delivered." — If interrogatories can be called a proceeding, then (). XV., r. 20, 
 may apply, which provides that the " Jelivery of a statement of claim or defence 
 or other pleading or proceeding, when mentioned or leferred to in these Orders, in- 
 cludes filing, where, by the practice of the Courts heretofore or under these 
 Orders, such statement, pleading or proceeding might be filed." 
 
COMMISSIONS TO EXAMINE WITNESSES. 
 
 316 
 
 It was held in Darling v. Darling, 8 P. K. 391, that when a foreign commission 
 issues on the Master's Certificate under G. 0. 221, cross-interrogatories should be 
 filed in the office of the Clerk of Records and Writs ; and where they were filed by 
 a defendant in the Master's office, and notice of filing given, but by accident the 
 commission was forwarded without them, an application made on the return of the 
 commission executed, to suppress the depositions, rvas refused with costs. 
 
 "8 days before," — '* Within 4 days." — As to computation of time, see 0. LII. 
 
 Hoio questions objected to. — The Referee made an order striking out as imperti- 
 nent certain interrogatories to be administered to a witness under commission : — 
 Heldjion appeal, that the Referee has no jurisdiction to strike out interrogatories for 
 impertinence. The proper course is for the witness to demur t > the impertinent 
 
 tuestions, Williams v. Corby, 8 Pr. R. 83. And see Fisher v. Owen, L. R. 8 Ch. 
 ). 645. 
 
 391. 
 
 6. An examination may be executed ex parte, unless the 
 opposite party shall, upon the hearing of the application for 
 the order or Master's certificate for the issue of the commission, 
 require notice of the execution of the commission, and give the 
 name and place of abode of some person resident within two 
 miles of the place where the commission is to be executed, 
 upon whom notice may be served. 
 
 "Master's Cei'tijicate." — G. (\ Chy. No. 221 provided as follows: — Under an 
 order of reference, witnesses m.y be examined before any examiner of the Court ; 
 and foreign commissions for the examination of witnesses without the jurisdiction 
 of the Court, may, on the certificate of the Master, be issued by the Clerk of 
 Records and Writs upon prcccipe. 
 
 The certificate will not be yiven expaif,e, McLennan v. Helps, 3 Ch. Ch. R. 193. 
 
 O. XXXIU. 
 
 39V. 
 
 7. Where notice of the execution of the commission if re- 
 quired to be served, 48 hours' notice shall be sufficient ; such 
 notice is to be in writing, stciting the time and place of the in- 
 tended examination, and is to be addressed to the person nai -\ed 
 for that purpose in the order or certificate for the issue of the 
 commission ; and service upon hiiu, or upon a grown up person, 
 at the address stated in the order or Master's certificate, shall 
 be sufiicient. If the name or address stated in such order or 
 certificate shall prove io be illusory or fictitious, or if the party 
 so notified shall fail to attend, pursuant to the notice.the commis- 
 si 'on may be executed ex parte. 
 
 "4li hours' notice." — As to computation of time, see 0. LII. 
 
 393 
 
 8, In the event of ar y witness on his examination, cross- 
 examination or re-examination, producing any book, document, 
 letter, j)aper or w citing, and refusing for good cause (o be stated 
 in his deposition, to part with the original thereof, then a copy 
 
 
 
 '■* 
 
 'r 
 
316 
 
 JUDICATURE ACT. 
 
 O. XXJLIII. 
 
 B. 8. 
 
 thereof, or extract therefrom, certified by the commissioners or 
 commissioner present to be a true and correct copy or extract, 
 shall be annexed to the witnesses' deposition. 
 
 
 Iff- 
 
 W 
 
 m 
 
 
 .; ■ ir"«" 
 ""'•irjl' 
 ,;::«;;;i;!J, 
 
 •"' ..'....•Kll 
 
 ^94. 
 
 9. Every witness to be examined under th>3 commission shall 
 be examined on oath, afiirmation, or otherwise in accordance 
 with his religion, by or before the said commissioners or com- 
 missioner. 
 
 395. 
 
 10. If am: one or more of the witnesses do not understand the 
 English language (the interrogatories, cross-interrogatories, 
 and m-ya voce questions, if any, being previously translated into 
 the language with which he or they is or are conversant), then 
 the examination shall be taken in English through the medium 
 of an interpreter or interpreters, to be nominated by the com- 
 missioners or commissioner, and to be previously sworn accord- 
 ing to his or their several religions by or before the said com- 
 missioners or commissioner truly to interpret the questions to 
 be put to the witness or witnesses, and his and their answers 
 thereto. 
 
 On the facts set out in the judgment, it was held that the interprster was not 
 such an agent or coirespondent of the complainant as would jugtify the suppression 
 of the depositions on that ground, Darling v. Darling, 8 P. R. 391. The commis- 
 sioner was an Italian and the instructions to him were in English :- Held, no oh- 
 jection, as it did not appear that the commissioner was unacquainted with the 
 English language, lb. 
 
 296. 
 
 11. The depositions to be taken under and by virtue of the 
 said commission shall be subscribed by the witness or witnesses, 
 and by the commissioners or commissioner who shall have taken 
 such depositions. 
 
 Where the insti-uctions directed that the depositions must be subscribed by the 
 witness, and a witness could not write, the commissioner certified to that fact, and 
 the interpreter and commissioner signed their names : -Held, sufficient. It did not 
 ajjpear that the commissioner took down the evidence : — Held, immaterial under 
 the instructions. The lei)<)8ition nf the claimant were taken by one commissioner, 
 and those of a witness by another ; -Held, also immaterial, Darling v. Darling, 8 
 P. R. 301. 
 
 297. 
 
 12. Tlio interrogatories, cross-intorrogatories,and depositions, 
 togetlier with any documents referred to therein, or certified 
 copies thereof or extracts therefrom, shall be sent to the judge or 
 officer on or before such day as may be ordered in that behalf, 
 
COMMISSIONS TO EXAMINE WITNESSES. 
 
 317 
 
 enclosed in a cover under the seal or seals of the said commis- 
 sioners or commissioner, and oflfice copies thereof may be given in 
 evidence on the trial of the action, by and on behalf of the 
 said parties respectively, saving all just exceptions, without any 
 other proof of the absence from this country of the witness 
 or witnesses therein named, than an affidavit of the solicitor or 
 agent of the party, as to his belief of such absence. 
 
 398. 
 
 13. Where, upon the application for a commission to take 
 evidence, the opposite party shall desire to join in the commis- 
 sion and examine witnesses on his own beVialf thereunder, or 
 shall name a commissioner, ^ach party is to pay the uost of the 
 commission consequent upon the examination o? his >vit- , 
 neases and the appointment of his commissioner, without pre- 
 judice to the question by ^ hom such costs are ultimately to be 
 borne : and if for any reason the commissioner named by either 
 party shall iefuse to act in the execution of the commission 
 upon receiving 48 hours' notice in writing from the other of 
 them so to do, the commission may be executed by the com- 
 missioner giving such notice alone. 
 
 299. 
 
 14. The trial of the action shall be stayed until the return of 
 the commission. 
 
 300. 
 
 15. Every order for a commission shall be read as if it con- 
 tained the above particulars, and shall not set forth the same, 
 but may contain any variations therefrom, Cv-nd any other direc- 
 tions, which the Court cr Judge shall see fit to make. 
 
 O. XXXIII. 
 
 
 
 'D 
 
 ^3 
 
 ORDER XXXIV. 
 
 Evidence by Affidavit. 
 
 301. 
 
 1. In case the parties in any action consent to the evidence •• xxxiv. 
 being taken by affidavit as between the plaintiff and the *• *• 
 defendant, the plaintiff within 14 days after such consent hns 
 been given, or within such time as the parties may a^:reo upon. 
 
' 
 
 I 
 
 I 
 
 Mi 
 
 iw^^i 
 
 
 m 
 
 (■I 
 
 '■ ('! 
 
 Ill 
 
 11 
 
 m 
 
 ' 'Aw 
 
 '■.i"«>;, 
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 ■"•'■IB' 
 
 J, , 
 
 
 
 
 ^H 
 
 i 
 j 
 
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 1 
 
 I 
 
 t i 
 
 R 
 
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 Ife '; 
 
 ■ 
 
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 H 
 
 hi 
 
 n-^i 
 
 ■ 
 
 318 
 
 JUDICATURE ACT. 
 
 ^iixx.iv. or a Judge in Chambers may allow, shall file his affidavits 
 *• and deliver to the defendant or his solicitor a list thereof. 
 
 See Eng. R. Sup. C, O. XXXVIII. , r. 1. 
 
 " Consevt,"—Tiie "consent" to the evidence being taken by affidavit under this 
 Rule, must be a formal consent in writing, New Westminster Brewing Co. v. Han- 
 nah, L. R. 1 Ch. D. 278. The guardian ad Uleni of an infant defendant is compe- 
 tent to give the consent requisite for taking the evidence by affidavit, Knatchbull 
 V. Fowle, L, R. 1 Ch. D. 604. 
 
 Where a party unreasonably refuses to consent to the evidence being by affida- 
 vit, the Court may order him to pay the costs of the other party desiring to have 
 it so taken, Patterson v. Wooler, L. R. 2 Ch. D. 586. 
 
 Time for filing. — Under the old practice no affidavit to be used could be sworn 
 before bill filed, Francome v. Francome, 13 W. R. 355 ; Fennalt-. Brown, 18 Jnr. 
 1051 ; unless where the practice required an affidavit to be annexed to the bill at 
 the time of filing, Walker v. Fletcher, 12 Sim. 420. But since the Judicature Act 
 an affidavit was allowed entitled in an action not yet begun, and in the matter of 
 the Judicature Act, Young v, Brassey, L. R. 1 Ch. D, 277. 
 
 The time for filing affidavits and taking evidence may be enlarged in proper 
 cases, see Anderton v. Yates, 15 Jur. 833; Mayes v. Mayes, 11 Jur._ N. S. 1033. 
 Thus, where affidavits were filed just before the close of the time, containing charges 
 as to which no issue had been raised in the pleadings, counter affidavits were 
 allowed, Scott v. Mayor of Liverpool, ID. & J. 369 ; and see Hope v. Threfall, 1 
 Sm. & G. app. 21 ; Douglass v. Archbutt, 23 Beav. 293. 
 
 Fm'm of affidavit, — The style of cause in an affidavit may be "Between A. B. 
 and others, plaintiffs, and C. D. and others, defendants," G. O. Chy. No. 597. If 
 the full style of cause is professed to be given, it must be given correctly, May o, 
 Prinsep, 11 Jur. 1032; Mackenzie v. Mackenzie, 5 D. & Sm. 338; Solomon v. Stal- 
 man, 4 Beav. 243; but see Hawes v. Bamford, 9 Sim, 653; re Varteg Iron Works 
 CI apel, 10 Ha. app. 37. Affidavits erroneously entitled allowed to be taken off 
 th' file and re-sworn, Fisher v. Coffey, 1 Jur. N. S. 956 ; and see re Barnes, 5 L. 
 T. N. S. 787. 
 
 The signature of the deponent cannot be dispensed with, Anderson >: Stather, 
 9 Jur. 1085; nor the words "make oath," Phillips v. Prentice, 2 Ha. 542; re New- 
 ton, 2 D. F. & J. 3 ; Allen v. Taylor, L. R. 10 f.q. 62; see also O. XXXII., r. 3. 
 
 " Within 14 days.'' — As to computation of time, see O. LII. 
 
 "Jvdge in Chambers.'' — See notes to O. IV., r. 1 (a). 
 
 303. 
 
 2. The defendant within 14 days after delivery of such 
 list, or within such time as the parties may agree upon, or a 
 Judge in Chamoer?^ may allow, shall ^le his affidavits and 
 deliver to the plaintitt or his solicitor a list thereof. 
 
 See Eng. R. Sup. C, O. XXXVIII., r. 2; G. O. Chy. Nos. 268, 269. 
 " Within 14 days." — As to computation of time, see O. LII, 
 
 303. 
 
 3. Within 7 days after the expiratior of the said 14 days, 
 or such other time as aforesaid, the plaintiff shall file his 
 affidavits in reply, which affidavits shall be confined to matter 
 strictly in reply, and shall deliver to the defendant or his soli- 
 citor a list thereof. 
 
 See Eng. R, Sup. C, O. XXXVIII., r, 3. 
 
 " Within 7 days."—AB to computation of time, see O. LII. 
 
EVIDENCE BY AFFIDAVIT. 
 
 319 
 
 Under the corresponding English rule, it has been held notwithstanding the O. XXXIV. 
 wording of the rule, that the plaintiff's affidavit in reply need not be restricted to r, 3. 
 cutting down the defendant's evidence, but may be confirmatory of the plaintiff's 
 evidence in chief. Peacock v. Harper, L. R. 7 Ch. D. 648. 
 
 Witnesses to rebut defendant's evidence. — In an action to set aside a deed of disso- 
 lution of partnership, and to have specific performance of an alleged agreement for 
 dissolution upon different terms, witnesses were examined on behalf of the plaintiff. 
 The plaintiff himself deposed to a certain conversation which took place between 
 him and the defendant, at the plaintiff's house, on the 19th August, 1878. This con- 
 versation formed the principal ground for thb charges made by the claim as to the 
 actual agreement for dissolution of the partnership. The plaintiff's wife also gave 
 evidence as to the conversation which took place in her presence at the plaintiff's 
 house on the 19th August. This witness was cross-examined as to the effect of that 
 conversation. Witnesses were then examined on behalf of the defendant. The 
 defendant himself denied that he had been at the plaintiff 's house on the 19th August, 
 1878, and denied that any conversation to the effect alleged by the plaintiff had ever 
 taken place. After the defendant's witnesses had all been exammed, the plaintiff 
 asked to be allowed to call further witnesses to deny the statement of the defendant, 
 as to his not having been at the plaintiff's house, on the ground that they had been 
 taken by surprise, and had been thrown off their guard by the course taken in cro:;^ 
 examination. Malin.), V. C, said : "The contradictions in the evidence wc.., palp- 
 able, the story told by the plaintiff and his wife being completely contradicted by the 
 defendant. The plamtiff's wife was not cross-examined as to the fact of the defen- 
 dant having been in the house on the 19th Aueust ; on the contrary, the whole tone 
 of the cross-examination was an admission of that fact, and a denial of the effect of 
 the conversation." His Lordship considered that the cases referred to in Taylor on 
 Evidence, were in favour of the Court having discretion to admit additional evidence 
 in such a case as this, and considering the extremely difficult position in which he 
 was placed in having to decide upon such contradictory evidence, and it being a 
 turnmg point in the case, he thought he was at liberty to have the difficulty removed 
 by any further evidence that could be adduced, he would therefore give leave to the 
 jilaintiff to call additional witnesses, Rogers v, Manley, W. N. (1880), 106. 
 
 Where a party is taken by surprise by a point made against him, at the hearin,^' 
 tl\e Judge may, if he think right, at any stage of the trial allow him to produce re- 
 butting evidence ; and if such permission is refused, the Court of Appeal will, in a 
 proper case, permit the fresh evidence to be taken on the appeal, Bigsby v. Dickin- 
 son, L. R. 4 Ch. D. 24. 
 
 304. 
 
 i. Where the evidence is taken by affidavit, any party desir- 
 ing to cross-examine a deponent who lias made an affidavit 
 ffied on behalf of the opposite party, may serve upon the party 
 by whom such affida>'it has been filed, a notice in writing, re- 
 quiring the production of the deponent for cross-examination 
 before the Court at the trial, such notice to be served at any 
 time before the expiration of 14 days next after the end 
 of the time allowed for filing affidavits in reply, or within such 
 time as in any case the Court or a Judge may specially appoint; 
 and unless such deponent is produced accordingly, his affidavit 
 shall not be used as evidence unless by the special leave of the 
 Court. The party producing such deponent for cross-examina- 
 tion shall not be entitled to demand the expenses thereof in 
 the first instance from the party requiring such i)roduction. 
 
 See Eng. R. Sup. C, O, XXXVIII., r. 4. 
 
 R. S. O. chap. 62, s. 10, is as follows : Wherever any party in any civil suit 
 or action desires to call the opposite })arty as a witness, at the hearing or trial he 
 
 > 
 
 r 
 
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 ...■"-IB!. 
 
 '"'i"».n«ll|, 
 
 ]■; 
 
 ;'i.;i 
 
 ifi'i 
 
 320 JUDICATURE ACT. 
 
 O. XXXIV. shall either subpoena such party, or give to him or his attorney at least eight days*" 
 B, 4. notice of the intention to examine him as a witness in the cause, and if such party 
 
 does not attend on such notice or subpcera, such non-attendance shall be taken as 
 an admission pro conjesso against him in any such suit or action, unless otherwise 
 ordered by the Court or Judge in which, or before whom, such examination is pend- 
 ing, and a general finding or judgment may be had against the party thereon, or 
 the plaintiff may be non-suited, or the proceedings in the action in such suit may 
 be postponed by the Court or Judge, on such terms as the Court or Judge sees fit 
 to impose. 
 
 *' Before the expiration of 14 days."— Ah to computation of time, see O. LII. 
 
 "His affidavit shall not be used."— In Meyrick >: James, W. N. (18r7) 120, a 
 motion was made on behalf of the defendants to take certain affidavitu filed on 
 behalf of the plaintiff off the file, on the ground that the deponent, who had been 
 ordered to attend before the examiners to be cross-examined, had not been produced. 
 The Master of the Rolls held that the motion was irregular, and that it v/ould not 
 be in accordance with the practice of the Court to order the evidence to be taken 
 off the file. 
 
 " Wit7iess fees."— In Richards r. Goddard, L. E. 10 Ch. App. 288, the plaintiff 
 produced a witness before the examiner, and demanded the expenses of his pro- 
 duction. The defendant's solicitor objected to the amount, but undertook to pay 
 what should be found due on taxation. The witness was then sworn and the cross- 
 examination proceeded. The plaintiff then applied for an order for repayment by 
 the defendant of the amount paid by the plaintiff to the witness for his expenses, or 
 for taxation, and payment of the amount found due. V.-C. Hall declined to make 
 any order : — Held, on appeal, that the matter was not one for judicial discretion, 
 but that the plaintiff was entitled, ex debitojustitice, to an immediate order for taxa- 
 tion and payment. 
 
 305. 
 
 5. The party to whom such notice as is mentioned in the last 
 preceding Rule is given, shall be entitled to compel the attend- 
 ance of the deponent for cross-examination in the same way as 
 he might compel the attendance of a witness to be examined. 
 
 306. 
 
 6. Where the evidence in oxiy action is under this Order taken 
 by affidavit, the notice of motion for judgment thereon shall be 
 given at the same time or times after the close of the evidence, 
 as in '^'ther cases is by these Rules provided after the close of 
 the pleadings. 
 
 See Eng. R. Sup. C, O. XXXVIII., r. 5. 
 
 *^ Notice of motion for Jud<jinent."--The corresponding words in the English rule- 
 are "notice of trial." The object of the change is not apparent. Notice of motion 
 for judgment may be given after evidence has been taken and without any trial 
 being had (O. XXXVI., r. 8,), but these casies are not of that class in respect of 
 which a consent wo'ild be required before the evidence could be given by affidavit. 
 The present order evidently relates to evidence for the trial, and the rule under 
 consideration was probably intended to apply to a notice of trial. 
 
MOTION FOR NEW TRIAL. 
 
 321 
 
 5ast eight days'" 
 Li if such party 
 all be taken aa 
 iilesa otherwise 
 ination ia pend- 
 Tty thereon, or 
 I auch auit may 
 r Judge aeea fit 
 
 see O. LII. 
 
 ff. (18:7) 120, a 
 adaviti* filed on 
 i, who had been 
 b been produced, 
 lat it v/ould not 
 snce to be taken 
 
 88, the plaintiff 
 iisea of nia pro- 
 ndertook to pay 
 rn and the cross- 
 ir repayment by 
 his expenaea, or 
 leclined to make 
 licial diacretion, 
 to order for taxa- 
 
 led in the last 
 
 1 the at.tend- 
 
 same way as 
 
 3e examined. 
 
 Order taken 
 jreon shall be 
 jhe evidence, 
 I- the close of 
 
 the English rule 
 Notice of motion 
 irithout any trial 
 lass in reapect of 
 ven by affidavit, 
 the rule under 
 
 ORDER XXXV. 
 
 Motion for New Trial in Jury Cases. 
 
 307. 
 
 1. Where there has been a trial by a jury, any applica- <>• xxxr. 
 tion for a new trial shall be to a Divisional Court. •* *• 
 
 By the Eng. R. Sup. C. , Dec. 1876, r. .5, where there has been a trial in one of 
 the Common Law Divisions by a jury, any application for a new trial ahall be to a 
 Divisonal Court, and where the trial has b'^en by a Judge without a jury the appli- 
 cation shall be to the Court of Appeal. The present rule ia limited to cases tried 
 by a jury (as originally drawn it made provision for cases tried without a jury, but 
 that part of it was afterwards struck out), but is not confined to Common Law Divi- 
 sions. 
 
 Under the R. S. O. c. 5, a. 287, a motion for a new trial where caaea were 
 tried by a Judge were to be made in the aame manner aa if they were tried by a 
 jury. In Chancery, motions for new triala were of rare occurrence, and could not 
 be founded upon mistakea made by the Judge, but only upon mistakes of the parties 
 or upon the ground of surprise. The remedy in case of an improper ruling of the 
 Judcte was by appeal. As the rule includes Chancery caaea, and no provision is 
 made for a new trial in cases where there is no jury, it ia probable that the Chan- < 
 
 eery practice, aa indicated above, will prevail in auch cases, except perhaps where 
 proper evidence has been rejected ; and even in such case the evidence can be 
 subsequently admitted without a new trial being had. See notes to sec. 12 of the 
 Act as to cases of conflict between Chancery and Common Law Practice. 
 
 In Mason v. Seney, 12 Gr. 14;^, will be found a didcusssion upon the particulars 
 that are necessary to be shewn in support of a petition to be allowed after the hearing 
 of the cause to put in newly discovered evidence, and see Anderaon v. Titmas, 3t) 
 L. T. N. S. 711. A case of Dow v. Dickinaon is noted in the W. N. (ISj'I) 52, 
 where it is said that affidavits in support of a new trial upon the ground of surprise 
 ought clearly to state what the grounds of surprise are. 
 
 During the trial of an action before a jury, the Judge was asked by the defend- 
 ant's counsel to non-suit the plaintiffs, and to direct a finding for the defendants, 
 upon the ground that no evidence had been given in support of the plaintiff's case. 
 This the Judge refused to do, and the jury found the issue left to them In favour of 
 the plaintiffs. Upon the following day the Judge directed judgment to be entered 
 for the plaintiffs, and stated his reasons for holding that there was evidence to 
 support the finding of the jury. The defendants ajjpealed to the Court of Appeal : 
 —Held, under the English rule above quoted, that the appeal would not lie, for the 
 judgment was upon the face of it correct, so long as the finding stood unreversed, 
 and that the Court of Appeal ha i r.:> power in the first instance to review the find- 
 ing of a jury, Davies v. Felix, L. R. 4 Ex. D. 32 : and see Yetta v. Foster, L. R. 3 
 C. P. D. 437. 
 
 "A Divisional Court." — By sec. 25, sub-a. 2 of the Act, all interlocutory and 
 other steps and proceedings in or before the Higli Court in any cause or matter 
 Eubsequent to the commencement thereof, shall be taken (subject to any Rules of 
 Court and to the power of transfer) In the Division of the High Court to which 
 such a matter is for the time being attached. 
 
 308. 
 
 2. The application for a new trial shall be by motion calling 
 on the opposite party to shew cause at the expiration of 8 
 days from the date of the order, or so soon after as the case 
 can be heard, why a new trial should not be directed. 
 
 See Eng. R. Sup. C, March, 1879, r. C. 
 
 21 
 
 
 
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 322 
 
 O. XXXV. 
 
 R. 4. 
 
 |J1 
 
 JUDICATURE ACT. 
 
 " B// motion."— Thi9 probably means a rule nixi, for the rule speaks of "8 days 
 from the date of the order." Kule 4, too, directs service of the order, and rule 8 
 refers to the argument on an order to shew cause ; see also O. XLVII., rr. 1, 2. 
 
 '^At the expiration of 8 days." — As to computation of time, see O. LII. 
 
 309. 
 
 3. Tlie application shall be made within the first 4 days of 
 the sittings of the Divisional Court, for hearing such applica- 
 tions which may take place next after the trial ; 
 
 See Eng. R. Sup. C, March, 1879, r. 6 ; R. S. O., c. 50, s. 284. 
 
 ^'Within the first 4 days." — As to computation of time, see O. LII. As to the 
 power of the Court to ext^ml the time, see O. LII., r. 9., which will probably set 
 at rest the controversy raised in Rconey v. Rooney, 4 App. R. 255. 
 
 (a) In case the decision of a question raised at the trial is 
 reserved, and is not given until the sittings aforesaid by the 
 Judge reserving the same, all motions respecting the trial shall 
 be made within 10 days after the day on which the decision is 
 given, if so mnny days expire in such sittings, and if not, then 
 within the first 4 days of tha ensuing sittings ; and until the 
 time for moving as aforesaid has expired, judgment shall not 
 be signed unless the Judge who tried the action certifies in the 
 manner hereinafter provided ; 
 
 This is almost a copy of R. S. O., c. 50, s. 285. 
 
 " Within 10 days." — As to computation of time, see O. LII. 
 
 " Certifies in the manner hereinafter provided.'^ — This refers to the next sub-rule 
 of thift order. It is presumed that this rule does not apply where, under O. XXXI V. , 
 r. 2, the Judge has, at the trial, directed judgment to be entered, see O. XXXVI., 
 r. 2. 
 
 (h) In case of a trial during the sittings of a divisional court, 
 all motions respecting the same shall be made within 6 days 
 after the day on which the verdict is rendered, if so many days 
 expire in such sittings, and if not, then within the first 4 days 
 of the ensuing sittings; and until the time for moving as afore- 
 said has expired, judgment shall not be signed unless the Judge 
 who tried the action certifies under his hand, that in his opinion 
 execution ought to issue in such action forthwith, or at some 
 day to be named in such certificate, and subject or not to any 
 condition or qualification. 
 
 This is almost a copy of R. S. O., c. 50, s. 286. 
 See notes to preceding sub-rule. 
 
 310. 
 
 4. A copy of the order shall be served on the opposite party 
 within 4 days from the time of the same being made. 
 
 See Eng. R. Sup. C, O. XXXIX., r. 2. 
 
 "Within 4 days." — As to computation of time, see O. LII. 
 
 r 
 
 i» 
 
MOTION FOH NEW TRIAL. 
 
 323 
 
 311. 
 
 5. A new trial shall not be granted on the ground of misdirec- 
 tion or of the impi op<'r admission or rejection of evidence, unless 
 in the opinion of the Court to which the application is made 
 some substantial wrong or miscarriage has been thereby occa- 
 sioned in the trial of the action ; and if it appear to such Court 
 that such wrong or miscarriage affects part only of the matter 
 in controversy, the Court may give final judgment as to part 
 thereof, and direct a new trial as to tlie other part only. 
 
 See Eng. R. Sup. C, O. XXXIX., r. 3 ; R. S. 0., c. 50, s. 289. 
 
 O. XXXV. 
 
 K. S. 
 
 <t^l 
 
 313. 
 
 6. A new trial may be ordered on any question in an action, 
 whatever be the g "ounds for the new trial, without interfering 
 with the finding or decision upon any other question. 
 
 See Eng. R. Sup. C, O. XXXIX., r, 4 ; R. S. 0., c. 50, a. 289. 
 
 Quwre.— Whether th« Courts have not now power to order a new trial as to one 
 defendant withiiut distijrbing the verdict as to another, where the merits of the 
 case justify such a cours ) ; per Hellish, L. J., in Purnell v. Great Western Railway 
 Co., L. R. 1 Q. B. D. 61% 
 
 313. 
 
 7. An order to shew cause shall be a stay of proceedings in the 
 action, unless the Court shall order that it shall not be so as to 
 the whole or any part of the action. 
 
 See Eng. R. Sup. C, O. XXXIX., r. 5. 
 
 314. 
 
 8. On the argument of an order to shew cause, the counsel 
 of the party supporting the application shall begin, and shall 
 state fully the grounds of the application, and shall have the 
 reply. 
 
 This is a new provision, and changes the established order of procedure. 
 Counsel moving for the new trial generally has, before obtaining the rule nisi, to 
 state fully the grounds of the application, in order to persuade the Court to grant 
 the rule. This rule requires him to repeat, perhaps however more elaborately, his 
 former argument. 
 
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 XXXVI. 
 
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 •■*i:; 
 
 JUDICATUKE ACT. 
 
 ORDER XXXVI. 
 Motion for Judgment. 
 
 315. 
 
 f Except where by the Act or by these Rules it is provided 
 that ^. .igment may be obtained in any other manner, the judg- 
 moiic cf the Court shall be obtained by motion for judgment. 
 
 F V Ei.g. R. Sup. 0., O. XL., r. 1. 
 
 *' £j>ccpt."— The Judge before whom the trial takes place has power to direct 
 judgment to be entered, O. XXXI., r. 21 ; see also, as to judgments by default of 
 appearance, O. IX. ; in default of pleading, O. XXV. ; under special order where 
 writ specially endorsed, O. X. ; and for disobeying an order for diboovery, 0. 
 XXVII., r. 18. 
 
 For form of judgment on motion, see Forms, No. 160. 
 
 316. 
 
 2. Where at or after the trial of an action by a jury, the 
 Judge has directed that any judgment be entered, any party 
 may, without any leave reserved, apply to set aside such judg- 
 ment, and enter any other judgment, on the ground that the 
 judgment directed to be entered is wrong by reason of the 
 Judge having caused the finding to be wrongly entered with 
 reference to the finding of the jury upon the question or 
 questions submitted to tiiem. 
 
 See Eng. R. Sup. C, Dec, 1876, r. 7, Ist part. 
 
 " Without any have reserved."— It is to be hoped that the permission in this case, 
 to move without leave reserved, will not by inference be taken to limit R. S. C, c. 
 50, 8. 283} which provides that every verdict shall be considered by the Court, in 
 all motions affecting the same, as if leave had been reserved at the trial to move in 
 any manner respecting the verdict, and in like manner as if the assent of parties 
 had been eripressly given for that purpose, 
 
 317. 
 
 3. Where, at or after the trial of an action before a Judge, 
 the Judge has diiected that any judgment be entered, any 
 party may, without any leave reserved, apply to set aside such 
 judgment and to enter any other judgment, upon the ground 
 that, upon the finding as entered, the judgment so directed is 
 wrong ; 
 
 See Eng. R. Sup. C, Dec. 1876, r. 7, 2nd part. 
 
 "A Divitional Court." — By sec. 25, sub-s. 2 of the Act, all interlocutory and 
 other steps and proceedings in or before the High Court in any cause or matter, 
 subsequent to the commencement thereof, shall be taken (subject to any Rules of 
 Court and to the power of transfer) in the Division of the said High Court to which 
 such cause or matter is for the time being attached. 
 
 " Or to the Court of Appeal.''— By the English rule the application is to be to the 
 Court of Appeal which is consistent wHh the rule requiring application for a new 
 
« I jr\ 
 
 « 
 
 MOTION FOR JUDGMENT. 
 
 trial to be to that Court where the action has been tried without a jury, 
 above rule an alternative is given. 
 
 325 
 
 By the O. XXXFI. 
 R. 3. 
 
 
 new 
 
 Power of Court. — When judgment has been given in an action tried before a 
 jury who have found specially the facts in dispute, upon a motion in the High 
 Court to set aside the findings, the Court has power to set aside the judgment and 
 enter it for the unsuccessful party at the trial, if they are of opinion that the find- 
 ings and the judgment at the trial cannot stand, and if they have before them all 
 the materials necessary for finally determining the questions in dispute, Hamilton v. 
 Johnson, L. R. 5 Q. B. D. 263. 
 
 (a) An application under this Rule may be to a Divisional 
 Court of the High Court or to the Court of Appeal. 
 
 318. 
 
 4. Where issues have been ordered to be tried, or issues or 
 questions of fact to be determined in any manner, and there is 
 no direction of a Court or Judge for the entry of judgment, the 
 plaintiff may set down the action on moiionf or judgment as soon 
 as such issues or questions have been determined. If he does 
 not so set it down, and give notice thereof to the other parties, 
 within 10 days after his right so to do has arisen, then after 
 the expiration of such 10 days any defendant may set down 
 the action on motion for judgment, and give notice thereof to 
 the other parties. 
 
 See Eng. R. Sup. C, O. XL., r. 7. 
 
 " laauea have been cvrdered to be tried."— See sec. 48 of the Act and notes to sec. 47. 
 
 " Within 10 days." — As to computation of tiT.e, see O. LII. 
 
 For form of judgment on motion after trial of issue, see Forms, Xo. 167. 
 
 319. 
 
 5. Where issues have been ordered to be tried, or issues or 
 questions of fact to be determined, in any manner, and some 
 only of such issues or questions of fact have been tried or deter- 
 mined, any party who considers that the result of such trial or 
 determination renders the trial or determination of the others 
 of them unnecessary, or renders it desirable that the trial or 
 determination thereof should be postponed, may apply to the 
 Court or a Judge for leave to set down the action on motion for 
 judgment, without waiting for such trial or detfrmination. 
 And ihe Court or Judge may, if satisfied of the expediency 
 thereof, give such leave, upon such terms, if any, as shall appear 
 just, and may give any directions which may appear desirable 
 as to postponing the trial of the other questions of fact. 
 
 See Eng. R. Sup. C, O. XL., r. 8. 
 
 " Court or a Judge."— See notes to O. IV., r. 1 (o). 
 
 "Leave to set down."— Such leave is not given, unless it is certain what issues 
 »re necessary to the decision of the action. Republic of Bolivia v. National Bolivian 
 Navigation Co., 24 W. R. 361. 
 
 i 
 
 
 i: 
 
; • 
 
 326 
 
 JUDICATURE ACT. 
 
 O. XXXVI. 
 
 Ik. «. 
 
 Titfl 
 
 
 320. 
 
 6. No action shall, except by leave of the Court or a Judge, 
 be set down on motion for judgment after the expiration of one 
 year from the time when the party seeking to set down the 
 same first became entitled so to do. 
 
 See Eng. R. Snp. C, O. XL., r. 9. 
 
 "Court or a Judge." — See notes to O. IV., r. 1 (o). 
 
 321. 
 
 7. Upon a motion for judgment, or for a new trial, the Court 
 may, if satisfied that it has before it all the materials necessary 
 for finally determining the questions in dispute, or any of them, 
 or for awarding any relief sought, give judgment accordingly ; or 
 may, if it shall be of opinion that it has not sufficient materials 
 before it to enable it to give judgment, direct the motion to 
 stand over for further consideration, and direct such issues or 
 questions to be tried or determined, and such accounts and 
 inquiries to be taken and made as it may think fit. 
 
 See Eng. R. Sup. C, O. XL., r. 10. 
 
 Under K. S. O., c. 50, s. 287, sub-s. 2, the Court in Terra had power to enter a 
 verdict only in casea where the trial had been by a Judge without a jury. No 
 such limit is made by the present rule. 
 
 Cotes. — When judgment has been given in an action tried before a jury, who 
 have found specially the facts in dispute, upon a motion in the High Court to set 
 aside the findinxs, the Court has power to set aside the judgment and enter it for 
 the unsuccessful party at the trial, if they are of opinion that the findings and the 
 judgment at the trial cannot stand, and if they have before them all the materials 
 necessary for finally determining the questions in dispute, Hamilton & Co. v. 
 Johnson' & Co., 5 Q. B. D. 263. 
 
 A defendant in an action which had been tried by a Judge without a jury, gave 
 notice of appeal ak'ainst the ji;dg<nent, and also obtamed ex parte a rule nisi for a 
 new trial. He did not set down the appeal for hearing, but before the argument of 
 the rule for a new trial, gave fresh notice of appeal from the judgment. There 
 was a substantial question to be tried as to the measure ot d^images. The appellant 
 being in insolvent circumstances, the plaintiff moved for security for costs :— Held, 
 first, that the plaintiff was entitled to the costs of the first notice of appeal as an 
 abandoned motion ; and, second, that the second notice of appeal was unnecessary, 
 inasmuch as the whole question could be tried under this rule upon the application 
 to make the rule for a new trial absolute, and the app'-Uant was, therefore, ordered 
 to give security for costs, Waddell v, Blockey, L. R. 10 Ch. D. 416. 
 
 In an action for libel defendant was found guiltv. He moved under above rule 
 to enter a judgment for the defence, on the ground that there was no evidence 
 upon which the jury could find that the words complained of were not a " fair " 
 report of a trial ancl therefore privileged. The C. P. Div. made an order for a new 
 trial and refused to enter a judgment for the defence. The defendant appealed, 
 but was unsuccessful, the Court holding that whether the report was fair or notl 
 was a question for the jury, which the Court could not withdraw from them, ana 
 that the above rule made no difference as to this, Milissich v. Lloyds, W. N. 
 (1877) 36. 
 
 '* Direct such issuei or quettiong to be tried." — As to mode of trial of issues, see 
 seo. 48 of the Act and notes to sec. 47. 
 
 
 
1 1 jCX^ 
 
 MOTION FOR JUDGMENT. 
 
 327 
 
 V. 
 
 32S. 
 
 8. Any party to an action may at any stage thereof apply 
 to the Court or a Judge for such order as he may, upon any 
 admissions of fact in the pleadings, or in the examination 
 of any other party, be entitled to ; and it shall not be neces- 
 sary to wait for the determination of any other question 
 between the parties ; or he may so apply where the only 
 evidence consists of documents and such affidavits as 
 are necessary to prove their execution or identity without the 
 necessity of any cross-examii^ation ; or he may so apply where 
 infants are concerned and evidence is necessary so far only as 
 they are concerned, for the purpose of proving facts which are 
 not disputed. The foregoing Rules of this Order shall not apply 
 to such applications, and any such application may be made 
 by motion as soon as the right of the party applying to the 
 relief ciwimed has appeared from the pleadings. The Court or 
 a Judge may, on any such application, give such relief, subject 
 to such terms, if any, as such Court or Judge may think fit. 
 
 The first and last parts of this rule are taken from the Eng. B. Sup. C, O. XL., 
 r. 11 , and the middle from G. O. Ghy. No. 270. In Chancery hearings of causes 
 might be either (1) upon examination of witnesses and hearing, which was equiva- 
 lent to a trial with an argument in term superadded ; (2) upon bill and answer, 
 which was a hearing upon the pleadings only, and was adopted when the answer 
 sufficiently admitted the plaintiff's case but did not sufficiently avoid it ; and (•{) 
 by way of motion for decree, which took place when (a) the only evidence consisted 
 of documents and such affidavits as were necessary to prove their execution or 
 identity, or (6) when infants were concerned and evidence was necessary only for 
 the purpose of proving, for the satisfaction of the Court, facts which were not 
 disputed by the guardian of the infant. 
 
 "Or in the examination of any other partu."— It has hitherto been the practice in 
 Common Law, where the examination of the defendant contained a sufficient 
 admission of the plaintiff's claim, to move in Chambers to strike out the defence as 
 embarrassing, and for leave to sign judgment in default of plea, see McMaster v. 
 Seattle, 6 i'r. R. 162 ; Turner v. Nedl, 6 Pr. R. /95 ; Davis v. Code, 7 Pr. R. 2 ; 
 Johnson v. .Tohnaon, 7 Pr. R. 288 ; Imperial Bank v. Summerfelt, 7 Pr. R. 320 ; 
 Post V. Leys, 7 Pr. R. 357 ; The Queen Insurance Co. v. Boyd, 7 Pr. R. 379. A 
 defence in ejectment will not however be struck out on an admission that the 
 defendant has no title, for he is entitled to possession until the plaintiff can prove 
 his case. Metropolitan Building and Savings Society v, Rodden, 6 Pr. R. 294. 
 
 In Chancery the procedure in such a case would be to set the cause down for 
 hearing npon bill and answer, when the depositions could be read as part of the 
 answf r, Powell v. Lee, 20 Gr. 621. The above rule follows the Chancery practice 
 iu this respect. 
 
 A Judge has a discretion as to whether a case is a proper one for making an 
 order on motion, and the Court of Appeal ought not to interfere with the exercise 
 of that discretion, Mellor v. Sidebottom, L. R. 5 Ch. D. ■'i42. 
 
 A plaintiff moving for judgment under this rule, on admissions in the defendant's 
 pleadings, must have a clear case, and the mere admission or non-denial by the 
 defendant of a right asserted by the plaintiff, but which has in fact no existence in 
 law, is not sufficient to entitle the plaintiff to a judgment establishing the right, 
 Chilton V. Corporation of London, L. R. 7 Ch. D. 735. Upon admissions in a 
 statement of defence in an administration action, and upon a notice of motion 
 for "a decree or decretal order," an order can be made upon an ordinary motion, 
 without setting down the motion, re Barker's Estate ; Hetherington v. Longrigg, 
 
 O. XXXVI. 
 
 B. S. 
 
 § 
 
 I 
 
 r X ■ 
 
32S 
 
 JUDICATURE Acrr. 
 
 wt^ 
 
 O. XXXVl L. R. 10 Ch. D. 162. In a partition action in which the defendants, by their 
 K. 8< statement of defence, admitted the fa^*^ stated in the plaintiffs' statement of claim 
 
 shewing the title of the plaintiffs : — Held, that the plaintiffs were, under this rule, 
 entitled to an order on motion directing the usual inguiries as to the persons 
 interested in the property, Gilbert v. Smith, L. R. 2 Ch. D. 686. In an action to 
 take the accounts of a partnership, the defendants by their answer, filed before the 
 Judicature Act came into force, admitted the partnership and that they had not 
 accounted, and alleged that the plaintiff had not accounted, and that moneys were 
 due from him to them. The plaintiff joined issue and moved under the new 
 practice before the hearing, upon affidavit of service, that the accounts of 
 the partnership dealings might be taken :--Held, that he was entitled to the 
 order under that order or under this rule, and an order was made accordingly, 
 Turquand v. Wilson, L. R. 1 Ch. D. 85. An order was made, on motion by the 
 plaintiffs on notice, for an account and del? ry of securities relating to the 
 testator's estate, of which they were trusteef dmitted by the defendant in his 
 answer to be in his possession as agent for the plaintiffs, Rumsey v. Reade, L. R. 1 
 Ch. D. 643. 
 
 A statement of defence was delivered in an action against a husband and wife on 
 a joint and several p'oiuissory note given by them, which, purporting to be the 
 defence of both defendants, raised no defence as regarded the husband : — Held, 
 upon motion for jud^'mont, that the plaintiff was entitlt^d under this rule to final 
 judgment against the husband without waiting for the determii>ation of the case 
 against the wife, Jenkins v. Davies, L. R. 1 Ch. D. 696. In Ontario, however, the 
 silence of a pleading is not to be taken as an admission of the facts contained in the 
 previous pleading, O. XV., r. 24. 
 
 A defendant delivered a statement of defence which, if uncontradicted, was a 
 good defence to the plaintiff's claim ; and the plaintiff's did not reply or obtain 
 further time within tne time limited, the defendant then before the expiration of 
 the six weeks within which a plaintiff must under Order XXXI., r. 2, give notice of 
 trial, moved under this Rule that the action might be dismissed with costs, on the 
 ground that by not replying the plaintiff had admitted the defence : — Held, that the 
 defendant seeking to dismiss an action under such circumstances was not " a party 
 applyini for relief" within the meaning of this rule, Litton v. Litton, L. R. '6 Ch. 
 D. 793. 
 
 Where one of several defendants served has not appeared, while the others have 
 appeared and delivered defences, the plaintiffs have moved for judgment against other 
 defendants who have delivered defences, under this rule, upon admissions, and as 
 against the defaulting defendant under Ord. XXV., r. 10, but as against the latter 
 the action must be set down on motion for judgment, and in both cases two cle<*r 
 days' notice of motion must be given. Parsons v. Harris, L. R. 6 Ch. D. 694. 
 
 As to the form of order on motion for judgment under this rule, when the further 
 hearing of the action is adjourned, see Bennett v. Moore, L. U. 1 Ch. D. 692. 
 
 '*A8 toon <M the riyht of the party applt/ing to the relief clmmed has appeared upcn 
 the pleadinffs."— The words "or in the examination, etc.," should have been added. 
 If these words are taken literally the motion cannot be made unless the admissions 
 are made in the pleadings. As the examination of parties in Chancery, however, 
 was considered a part of the pleadings, that word may perhaps be held to include 
 the examination, more especially as the first part of the rule shews cle.irly the 
 intention to permit the motion to be made upon admissions in the depositions, see 
 Powell V. Lea, 20 Gr. 
 
 323. 
 
 9. Where it is made to appear to the Court or a Judge, on the 
 hearing of any application which may be pending before the 
 Court or Judge, that it will be conducive to the ends of justice 
 to permit it, the Court or Judge may direct the application to be 
 turned into a motion for judgment, or a hearing of the cause 
 or matter; and thereupon the Court or Judj^e may make 
 such order as to the time and manner of giving the evidence 
 
MOTION FOR JUDGMENT. 
 
 329 
 
 * ' 
 
 in the cause or matter, and with respect to the further prose- •• ^xxvi. 
 cution thereof, as the circumstances of ♦he case may require ; ** *' 
 and upon the hearing it shall be discretionary with the Court 
 or Judge to either pronounce a ju(igiiient or make such order 
 as the Court or Judge deems expedient. 
 
 See G. 0. Chy. No. 614. 
 
 " Court or a Judge." — See notes to 0. IV., r. 1 (o). 
 
 t!^ 
 
 324. 
 
 10. Where at any time after the writ of summons has been 
 issued it is made to appear to the Court or a Judge on an ex 
 parte application that it will be conducive to the ends of justice 
 to permit a notice of mrtion for a judgment to be forthwith 
 served, tlie Court or Judge may order the same accordingly ; 
 and when such permission is granted, the Court or Judge is to 
 give directions, as to the service of the notice of motion and 
 filing of the affidavits, as may be expedient. 
 
 (a) Upon the hearing of such motion the Court may 
 grant or refuse the application or instead of either granting 
 or refusing the same, may give such directions for the examina- 
 tion of either parties or witnesses, or for the making of further 
 inquiries, or with respect to the further prosecution of the suit, 
 as the circumstances of the case may require, and upon such 
 terms as to costs as the Court thinks right. 
 
 See G. 0. Chy. Nos. 271, 272. 
 
 *' Court or a Judge "Sie notes to O. IV., r. 1 (o). 
 
 
 
 
 
 
 ORDER XXXVII. 
 Entry of Judgment. 
 
 325. 
 
 1. Every judgment shall be entered by the proper officer in o. x: 
 the book to be kept for the purpose. The forms in Appen- *• *• 
 dix (I) hereto may be used for entering judgments, with 
 such variations as circumstances may require. 
 
 See Ehk. R. Sup. C, O. XLI., r. 1 ; R. 3. O., c. 50, s. 302. 
 
 "Judgment." — Judgment includes decree, sec. 91. 
 
 ' * Entered," — At Coirmon Law the foi m of juflffn- ent, after reciting the default of 
 the defendant, or the terms of an «>rder, or h^postea, etc., proceeded, "It is adjudged 
 that, etc." The entry of the judgment was the signing by the Clerk of the Court 
 
 XXXFII. 
 
l^~^^ 
 
 330 
 
 JUDICATURE ACT. 
 
 •••:• 
 »'.'i\ 
 
 , 'I 'I 
 
 ««>4i 
 
 i;l 
 
 O XJLXVII. of the note in the margin of the judgment roll, which remained of record in the 
 B, 1. Court. In Chancery each paragraph of a decree commenced, " This Court doth 
 
 declare," or "This Court doth order and decree." The m(vj/ consisted in the decree, 
 after it was settbd and signed, being entered or copied into a book, until which it 
 was not complete, Drummond v. Anderson, 2 6r. 150. The decree was then 
 delivered out to the solicitor. 
 
 Under the Judicature Act both forms will be adopted. All the forms given of 
 judgments by default (Forms, Nos. 147, 148, 149, 150, 151, 152, 164, 1«5, 166.) use 
 the words " It is adjudged," with the exception of the forms of judgments of fore- 
 closure or sale (168, 169), redemption (170), administration (171), and partition or 
 sale (172), in which the Chancery form is followed. The forms of judgment after 
 trial (154, 155, 157, 158, 159, 163), after an order in Chambers (InS, 161, 162), and 
 after motion for judgment (160, 167), use the Common Law expression ; while the 
 form of judgment at trial by a Judge (156) has the words "This Court doth 
 declare," " This Court doth order aud adjudge." 
 
 As to the mode of entering judgments, see Seton, (4th ed.) 12, 13, 32, 1546. 
 
 Settling judgments. — By O. XIJX., r. 2, "two of the oflBcers of the High Court 
 shall, in addition to their other duties, be judgment clerks of the High Court, for 
 the purpose of settling the form and tenns of such special judgmeiits, as may be 
 referred to them for that purpose by any Divisional Court, or a Judge of any 
 Division, or by the Master in Chambers." 
 
 It has been the practice in Chancery to settle all decrees except those of the 
 simplest form before a Registrar. For this purpose the party having the conduct 
 of the cause prepares and leaves with one of the Registrars draft or minutes of the 
 decree, and obtains an appointment whioh is served upon the other parties. Upon 
 its return the minutes are gone over and settled. The Registrar may introduce 
 such alterations as from his experience he believes the Court would sanction, Daven- 
 port ■•'. Stafford, 8 Beav. .^j03 ; Hargrave v. Hargrave, 3 Mac. & G. 348. In cases 
 of much complication another appointment is taken, after the decree has been 
 engrossed to pass the decree, up<)n which the engrossment is compared with 
 the minutes and signed by the Registrar. G. O. Chy. No. 12 provides that 
 no notice to settle minutes or pass an order is to be given unless by direction of the 
 Registrar ; and G. O. Chy. No. 13, that where a notice is given to settle minutes, or 
 to })ass an order, and the party served attends thereon, but the party giving the 
 notice does not attend, or is not prepared to proceed, the Registrar may proceed 
 ex parte to settle the minutes or pu^s the order, or may in his discretion order the 
 party giving the notice to pay to the other the costs of his attendance ; or if a party 
 served asks for delay the Registrar may grant the delay on such terms as he thinks 
 reasonable as to payment of costs or otherwise. 
 
 "Speaking to the minutes." — If any party is dissatisfied with the form of the 
 decree, as settled by the Registrar, he should obtain from the Registrar a stay of 
 the decree and serve notice of motion to vary the minutes, shewing in the notice 
 the alterations desired. 
 
 At the hearing a decree was pronounced in favour of the plaintiff with costs 
 generally, but, on moving to vary the minutes, statements and admissions in the 
 answer were pointed out, to which the attention of the Court had not been drawn 
 at the hearing, which would have enabled the plaintiff to have obtained the same 
 decree on bill and answer. The Court varied the decree by directing that only such 
 costs should be taxed as would have been incurred by a hearing on bill and answer, 
 Johnson v. Trustees of Public School Section No. 1, in the Township of Howard, 
 26 Gr. 204. 
 
 In Machar v, Vandewater, 26 Gr. 319, the defendant, at the hearing, was found 
 answerable to the plaintiff in respect of shares of stock bought by tlie plaintiff 
 through his agency, and subsequently the Court, on motion, added to the decree a 
 direction that the defendant should indemnify the plaintiff against future calls on 
 such stockj but refused costs of the application to either parties ; to the plaintiff 
 because the relief woidd have been granted at the hearing if then asked ; and to the 
 defendant because he resisted that to which the plaintiff was clearly entitled. 
 
 See also as to variation of decree without rehearing. Pepper v. Pepper, W. N. 
 (188it) 104 ; re Robinson, W. N. (1873) 281 ; Andrews v. Bchann.m, W. N. (1869) 
 80; Tiel v. Barlow, 3 D. J. & S. 426; Viney v. Chaplin, 3 D. & J, 282. 
 
 Variation ofprcecipe decreet.— Where a party to a cause is dissatisfied with the 
 manner in which the Registrai' takes the account between the parties, and desires 
 
ENTRY OF JUDGMENT. 
 
 S31 
 
 to have the decree drawn up by the officer on pracipe varied, it is not necessary to O. XXXVII. 
 rehear the causes ; the proper mode is to present a petition to the Court for that f|, |. 
 purpose, NeUes v. Vandyke, 17 6r. 14. • 
 
 Correction of decree after entry. — Where a decree is settled and issued in the 
 absence of one of the parties, without providing for relief to which he is entitled, 
 and which would have been given him if brought to the attention of the Court ; the 
 proper mode of having the error corrected is to move upon petition ; it is not neces- 
 sary to rehear for that purpose, Simmers v. Erb, 21 6r. 289. 
 
 As to clerical errors in decree, see O. XXVII., r. 14. 
 
 Wrong decree will not be acted upon,— In Thompson v. Dodd, 26 Gr. 381, a decree 
 was pronounced at the hearing declaring a deed void to the extent of the interest 
 reserved in favour of the grantor and his wife and the children of a daughter of the 
 grantor, but in drawing up the decree the deed was declared void as to the children 
 of an intended marriage of a son of the grantor. Under this decree a sale of the 
 trust estate was had at the instance of ttie plaintiff, a creditor who had filed the 
 bill impeaching the deed as fraudulent. The Court, under these circumstances, 
 refused t(> carry out the sale, and ordered the decree to be corrected, and a new 
 sale had, in which the interests of the children of the marriage should be protected. 
 
 326. 
 
 2. Where any judgment is pronounced by the Court or a 
 Judge in Court, the entry of the judgment shall be dated as of 
 the day on which such judgment is pronounced, and the judg- 
 ment shall take eilect from that date. 
 
 See Eng. R, Sup. C, O. XLL, r. 2. 
 
 Under the former practice it was held that an order of the Court of Chancery 
 is made on the day when it is pronounced by the Judge and not on the day when it 
 is drawn up, He Risca Coal Co., 10 W. R. 701. 
 
 321. 
 
 3. In all cases not within the last preceding Rule, the entry 
 of judgment .shall be dated as of the day on which the requisite 
 documents are left with the proper officer for the purpose of 
 such entry, and the judgment shall take effect from that date. 
 
 See Eng. R. Sup. C, O. XLI., r. 3. 
 
 All judgments v/hether interlocutory or final, shall be entered on record of the 
 day of the month and year, whether in term or vacation, when signed, and shall not 
 have relation to any other day; but it shall be competent for the Court or a Judge 
 to order a judgment to be entered nunc pro tunc, Rulea of Prac, Trin. Term ISoti, 
 No. 47. 
 
 328. 
 
 4. Where under the Act or these Rules, or otherwise, it is 
 provided that any judgment may be entered or signed upon 
 the filing of any affidavit or production of any document, the 
 officer shall ex.amine the affidavit or document produced, and 
 if the same be regular and coatain all that is by law required, 
 he shall enter judgment accordingiy. .. • 
 
 See Eng. R. Sup. C, O. XLI., r. 4. 
 
 ;;» 
 
 
 
332 
 
 O. XXXVII. 
 H. A. 
 
 JUDICATURE ACT. 
 
 3189. 
 
 6. Where by the Act or these Rules, or otherwise, any judg- 
 ment may be entered pursuant to any order or certificate, or 
 return to any writ, the production of such order or certificate, 
 sealed with the seal of the Court, or of such return, shall be a 
 sufficient authority to the officer to enter judgment accordingly. 
 
 See Eng. R. Sup. C, 0. XLI., r. 5. 
 
 The iiKiorsement of a certifioate by the officer present at the trial, upon the 
 copy of the pleadings delivered for the use of the Judge at the trial of a airection 
 to enter judgment, t-hall be sufficient authority to the proper officer for entering 
 judgments, to enter judgments accordingly, U. XXXI., r. 22. 
 
 
 m 
 
 I 
 
 m 
 
 P^!' 
 
 330. 
 
 6. Any judgment of nonsuit, unless the Court or a Judge 
 otherwise directs, shall have tlie same etft'ct as a judgment upon 
 the merits for the defendant; but in any case of mistake, sur- 
 prise, accident, or otherwise, any judgment of nonsuit may be 
 set aside on such terms, as to payment of costs and other- 
 wise, as to the Court or a Judge shall seem just. 
 
 See Eng. R. Sup. C, O. XLI., r. 6 ; G. O. Chy. No. 184. 
 " Court or a Judge." — See notes to 0. IV., r. 1 (o). 
 " 5«rpn»e."— See notes to 0. XXXV., r. 1. 
 
 331. 
 
 7. Where a sale is ordered, the master may cause the prop- 
 erty, or a competent part thereof, to be sold either by public 
 auction private contract, or tender, or part by one mode and 
 part by another, as he may think best for the interest of all 
 parties, and he may fix an upset price or reserved bidding, but 
 such price or bidding must be so fixed at the meeting held by him 
 for the purpose of sctcling the advertisement, and making the 
 other arrangements preparatory to the sale, and must be notified 
 in the conditions of sale. The master is to settle all necessary 
 conveyances for the purpose of carrying out the sale in case 
 the parties differ, or in case there shall be any persons under any 
 disability (other than coverture) interested in such sale. 
 
 See notes under Mortgage Suits, Part III. 
 
 332. 
 
 8. Upon a reference under a judgment for redemption, the 
 master is, without any special direction, to take an account of 
 what is due to the defendant for principal money and interest, 
 and is to tax to him his costs, and also appoint a time and place 
 
I I jTN 
 
 ENTRY OP JUDGMENT. 
 
 333 
 
 or times and places for payment according to the present •• xxxvn, 
 practice of the couii in that behalf. ■• *• 
 
 Sm notes under Mortgage Suite, Part III. 
 
 33». 
 
 9. In a redemption suit, in default of payment being 
 made according to the report, the defendant is to be entitled 
 on an ex parte application in Chambers to a final order of fore- 
 closure against the plaintiff, or to an order dismissing the bill 
 with costs to be paid, by the plaintiff to the defendant, forth- 
 with after taxation thereof. 
 
 See notes under Mortgage Suits, Part III. 
 
 334. 
 
 10. In a redemption suit where the plaintiff is declared 
 foreclosed, directions may be given either by the final order 
 foreclosing the plaintiff, or by subsequent orders, that all neces- 
 sary inquiries be made, accounts taken and proceedings had 
 for redemption or foreclosure, or redemption or sale, as against 
 any subsequent incumbrancers, or for the adjustment of the 
 relative rights and liabilities of the original defendants as 
 among themselves, and such order shall have the same force 
 and effect as a judgment obtained at the suit of the original de- 
 fendant. 
 
 See notes under Mortgage Suits, Part III. 
 
 335. 
 
 11. Where the order is for redemption or foreclosure, be 
 redemption or sale, such proceedings are in such case to or 
 thereupon had, and with the same effect as in a suit for fore- 
 closure or sale, and in such case the last incumbrancer is to be 
 treated as the owner of the equity of redemption. 
 
 See notes under Mortgage Suits, Part III. 
 
 336. 
 
 12. In a suit for foreclosure or sale upon payment by the de- 
 fendant, or in a suit for redemption upon payment by the plain- 
 tiff, or payment of the amount found due, the plaintiff or defend- 
 ant shall, unless the decree otherwise directs, assign and con- 
 vey the mortgaged premises in question to the defendant, (or 
 
 Elaintiff, as the case may be,) making the payment, or to whom 
 e may appoint, free and clear of all incumbrances done by 
 
 
 V 
 
 I" 
 
834 
 
 JUDICATURE ACT. 
 
 B. I'J. 
 
 'I" 
 
 xxxvu. i^jm^ a^ujj deliver up all deeds and writings in his custody or 
 power relating thereto, upon oath, and in case of a corporation 
 the affidavit shall be made by the offit er thereof having the 
 custody of such deeds and writings. 
 
 See notes under Mortgage Suits, Part III. 
 
 337. 
 
 13. The foregoing rules, 7-12, are to apply to all cases of ref- 
 erence to the master in suits for foreclosure, sale or redemption. 
 
 See notes under Mortgage Suits, Part III. 
 
 338. 
 
 14. Clerical mistakes in judgments or orders.or errors arising 
 therein from any accidental slip or omission, may at any time 
 be corrected by the Court or a Judge on motion without an 
 appeal. 
 
 See Eng. R. Sup. C, Deo. 1879, r. 5. 
 
 An application to amend an order which has not been drawn up in conformity 
 with the judgment pronounced, so as to make the same conformable thereto ; and 
 an application to correct any other clerical mistake in an order, or an error arisins 
 from an accidental slip or omission, may be made in Chambers on petition, and 
 the Court may grant the same, if under all the circumstances the Court sees fit, 
 6. O. Chy. No. 335. Where an ord 'r, as drawn up, requires amendment in any 
 other particular on which the Court did not adjudicate, the same may be amended 
 in open Court on petition without a rehearing, if under ail the circumstances the 
 Court deems tit, G. O. Chy. Xo. 33t). Where a necessary direction is omitted in a 
 decree, the Court will amend it, though passed ami entered, Moffatt v. Hyde, 6 U. 
 C. L. J. 94 ; and see Eadie v. McEwen, 14 Gr. 404. An application to correct a 
 clerical error in a decree or order, must as a general rule be made upon notice, 
 Radenhurst V. Reynolds, 11 6r. 521. 
 
 See also notes to O. XXXVII., r. 1. 
 
 O. XXXVIII 
 B. 1. 
 
 ORDER XXXVIII. 
 Execution. 
 
 339. 
 
 1. A judgment for the recovery by or payment to any person 
 of money may be enforced by any of the modes by which a 
 judgment or decree, for the payment of money, of any of the 
 Superior Courts, might have been enforced at the time of the 
 passing of the said Act. 
 
 See Eng. R. Sup. C, O. XLII., r. 1^; R. &. 0., c. 66, ss. 14, 72 ft 73. 
 
 Tiine for istue of writs of fi. fa, — There is a discrepancy between the practice at 
 Law and in Chancery as to the regularity of Mrrits issued immediately after sigrning 
 of judgment or issue of an order. In Coolidge v. Bank of Montreal, 6 P. R. 73, it 
 
I r\ 
 
 EXECUTION. 
 
 886 
 
 was held that a party who has to [lay (Lbt and coHtaon a final judgment on verdict O. XH 
 non-suit, demurrer, or otherwiHe, in the otdinnry course of a cauHe, ii« not entitled h. !• 
 to any time to pay them after proper proceedin^H had to entitle the other party to 
 collect them, nor ia any demand for payment before execution required. A party 
 entitled to costs may proceed to collect the same '^- execution immediate^ after 
 revision, without waiting a " reasonable time " f < t iiayment. But in Cullen v, 
 CuUen, 2 Ch. Ch. U. 94, it was held irregular to take out a Ji. /a. the instant costs 
 have been taxed, without allowing a reasonable time to the solicitor, whoHe client 
 has to pay them, to coinmunic tte the result ' ' the to 'cation. Tl'm quuation seems 
 to be now settled by rule 14 of this Order. 
 
 So long as the final judtonent in an action remnlnn unsatisfied, the action is a 
 "cause or matter pending" within the meaning of ••• c. 24, sub-nec 7, of the Judi- 
 cature Act, 18r<MOnt. Act, sec. 16, sub-sec. 8), uul coui^equently in n action by a 
 creditor against a debtor, in which the plaiutiif has obtained final judgment, the 
 Court has power, under that sub-section, in order to satisfy the jud.;ment, to grant 
 equitable execution against the defendant by appointing a receiver upon motion 
 in tliat action, although the writ may not have been imlorsed wi^^ a clmm for a re- 
 ceiver ; it being unnecessary in such case to bring another action for the purpose, 
 Salt V. Cooper, L. II. 10 Ch. D. 544. 
 
 A sheriff's officer and an auctioneer proceeded with the sale of the property of 
 a trader, seized under a,/t. fa., after they had received notice by a letter from thn 
 debtor's solicitor that he had filed a liquidation petition, and had also received 
 notice by telegram that the Court of Bankruptcy had made an order restraining fur- 
 ther proceedings under the writ : — Held, that the sheritf's officer and the auctioner 
 had been guilty of contempt of Court, and that they must pay the costs of a motion 
 to commit them, In re Bryant, L. K. 4 Ch. D. 9d ; see also ex parte Langley, L. R. 
 13 Ch. D. IIU. 
 
 For forms of writ of ^. fa., see Forms, No. 175. 
 
 For form of order for costs, see Forms, No. 176. 
 
 For form of writ of venditioni exponas, see Forms, No. 177. 
 
 For form of writ for delivery or assessed value of chattels, see Forms, No. 183. 
 
 For form of writ of fieri facias to recover a defendant's costs where a plaintiff 
 has given notice of discontinuance of the action under Order XIX., and has made 
 default in payment of the defendant's costs of suit, Bolton v. Bolton, L. K. 3 Ch. 
 D. 276. 
 
 Sequestration.— It a party who is ordered to pay money neglects to obey the 
 order according to the exigency thereof, the party prosecuting the order may, at 
 the expiration of the time limited for the perfonnance thereof, apply in Chambers 
 for a writ of sequestration against the defaulting party, and upon tn-oof of due 
 service of a notice of the motion, unless the Court thinks proper to dispense with 
 'such service, and upon proof by affidavit of such other matters, if any, as the Court 
 requires, the Court may order a writ of sequestration to issue, G. O. Chy. No. 291. 
 
 To entitle a party to a writ of sequestration it is not necessary now to shew 
 that the order for payment and a demand there imder have been personally served 
 on the party ordered to pay. Long v. Long, 6 Pr. K. 137. Before resorting to a 
 writ of sequestration under Ord. 291, a writ of fieri facias goods should be issued ; 
 then if that fails, an order attaching debts ; and a writ of sequestration should issue 
 only ( 1) where the lands are insufficient to satisfy the debt and it becomes important 
 to realize the profits durin,' the time that must elapse before they can be sold under a 
 fieri facias ; or (2) where the interest of the debtor is of such a nature that it cannot 
 be taken under a fieri facias. Nelson v. Nelson, 6 Pr. E. 194. The power of the 
 Court to order a sequhtration instead of a fieri facias, if occasion should require, is 
 not interfered with by these rules, lb. 
 
 As to claims of third persons upon property seized under a writ of sequestration, 
 see Prentiss v. Brennan, 2 Grr. 274, 322, 582. Notice must be given of an applica- 
 tion for an order to sell prO; -ty seized by sequestration, Forbes v. Connolly, I Ch. 
 Ch. B. 6. Lands cannot be sold under the writ, Nelson v. Nelson, 6 Pr. K. 191. 
 
 As to the effect of a writ of sequestration upon leases and rent, see Jackson v. 
 Jackson, 1 Ch. Ch. R. 115 ; Harris v. Meyers, 2 Ch. Ch. R. 121 ; 3 Ch. Ch. R. 89, 
 107 ; Meyers v. Meyers, 19 Gr. 541. As to the effect of a writ of sequestration upon 
 ohoses in action, see McDowell v. McDowell, 1 Ch. Ch. R. 140 ; Irving v. Boyd, 15 
 Gr. 167. 
 
 For forms of writ of sequestration, see Forms, No. 182. 
 
 XXX VIII 
 
 
 
 
 ^li 
 
336 
 
 JUDICATURE ACT. 
 
 o.xxxriii 
 B. sa. 
 
 11 'I 
 
 ^;■''^ 
 
 m 
 
 340. 
 
 2. A judgment for the payment of money into Court may be 
 enforced by any mode by which a judgment or decree for that 
 purpose of any such Court might have been enforced at the 
 time of passing the said Act. 
 
 See R. Sup. C, 0. XLII., r. 2. 
 
 By R. S. 0., c. 66, a. 72, sub-s. 3, in case a decree or order in Chancery 
 directs the payment of money into Court, or to the credit of any cause, or other- 
 wise than to any person, the person having the carriage of the d jcree or order, so 
 far as relates to such payment, shall be deemed the person to receive payment with> 
 in the meaning of the two preceding sub- sections of that section. 
 
 341. 
 
 3. A judgment for the recovery or for the delivery of the 
 possession of laud may be enforced by writ of possession. 
 
 See Eng. R. Sup. C, O. XLII., r. 3. 
 
 Upon judgment for recovery of possession and costs, there may be either one 
 writ or separate writs of execution for the recovery of possession and for the costs, 
 at the election of the plaintiff, R. S. O., c. 51, s. 36. As to order for delivery of 
 possession and writ of assistance in Chancery, see G. O. Chy. Nos. 294, 369. As 
 to the writ of habere /acuta possesnonem, see Harrison's C. L. Jr. A. 536. 
 
 For form of writ c! possession, see Forms, No. 178. 
 
 343. 
 
 4. A judgment for the recovery of any property other than 
 land or money may be enforced : 
 
 By writ for delivery of the property : 
 By writ of attachment : 
 By writ of sequestration. 
 
 " WHt for delivery of property." — Where an action is brought for the specific 
 recovery of chattels, the plaintiff may, upon default of appearance, have judgment 
 for the delivery of the chattels ; and may then enforce that judgment under this 
 rule. Ivory v. Cruikshank, W. N. (1875) p. 249. 
 
 For form of writ for delivery of property, see Forms, No. 179. 
 
 ' * Writ of attachment. "—See next rule. 
 
 " Writ of sequestration."— See rule 1 of this Order. 
 
 343. 
 
 6. A judgment requiring any person to do any act other 
 than the payment of money, or to abstain from doing anything, 
 may be enforced by writ of attachment, or by committal. 
 
 See Eng. R. Sup. C, O. XLII., r. 6. 
 
 If a partv who is ordered, otherwise than by an order of course, to do any act 
 other than to pay mon jy in a limited time, refuses or neglects to obey the order 
 according to the exigency thereof, the party prosecuting the order shall at the ex- 
 piration of the time limited, upon filing an affidavit of the service of the order and 
 
.11 J» * 
 
 EXECUTION. 
 
 337 
 
 of the non-performance thereof be entitled nponprcecipe to a writ or writs of attach- O.XXXF1II 
 ment against the disobedient party, 6. 0. Chy. No. 288. But the Court will not b. 5. 
 commit for disobeying an order where the disobedience is in effect the non-pay- 
 ment of money, Male v. Bouchier, 1 Ch. Ch. R, 359 ; 2 Ch. Ch. R. 254 ; Harris v. 
 Meyers, 1 Ch. Ch. R. 229. An attachment to commit for contempt will not be 
 granted merely for non-payment of the costs of the contempt, Dickson v. Cook, 1 
 Ch. Ch. R. 210 ; Pherill v. Pherill, 2 Ch. Ch. R. 444 ; Clark v. Clark, 3 Ch. Ch. R. 
 67. It is improper to have recourse to an attachment when the object sought 
 can be attained without such process, Mason v. Seney, 2 Ch. Ch. R. 220. 
 
 In order to punish a person guilty of a contempt, the Court may imprison him 
 for a stated period, allowing him to be discharged if he pay the costs of the con- 
 tempt before the expiration of such period, Harris v. Myers, 1 Ch. Ch. R. 229. 
 
 For form of writ of attachment, see Forms, No. 181. 
 
 344. 
 
 6. In these Rules the term " writ of execution " shall include 
 writs of fieri facias, capias, sequestration, and attachment, and 
 all subsequent writs that may issue for giving effect thereto. 
 And the expression "issuing execution against any party" shall 
 mean the issuing of any such process against his person or 
 property as under the preceding Rules of this Order shall be 
 applicable to the case. 
 
 See Eng. B. Sup. C, O. XLII., r. 6. 
 
 345. 
 
 7. Where a judgment is to the effect that any party is en- 
 titled to any relief subject to or upon the fulfilment of any 
 condition or contingency, the party so entitled may, upon the 
 fulfilment of the condition or contingency, and demand made 
 upon the party against whom he is entitled to relief, apply to 
 the Court or a Judge for leave to issue execution against such 
 party. And the Court or Judge may, if satisfied that the right 
 to relief has arisen according to the terms of the judgment, 
 order that execution issue accordingly, or may direct that any 
 issue or question necessary for the determination of the rights 
 of the parties be tried in any of the ways in which questions 
 arising in an action may be tried. 
 
 See Eng. B. Sup. C, O. XLII., r. 7. 
 
 " Court or a Juige."— See notes to 0. IV., r. 1 (o). 
 
 
 ^■W 
 
 346. 
 
 8. Where a judgment is against partners in the name of the 
 firm, execution may issue in manner following : 
 
 (a) Against any property of the partners as such ; 
 22 
 

 iH] 
 
 i 
 
 338 
 
 JUDICATURE ACT. 
 
 ;|| 
 
 1 
 
 '$ 
 
 Ili'M 
 
 li; t: 
 
 o.xxxTiii ^5^ Against any person who has admitted on the pleadings 
 *• *• that he is, or has been adjudged to be a partner ; 
 
 (c) Against any person who has been served, as a partner 
 with the writ of summons, and has failed to appear. 
 
 If the party who has obtained judgment claims to be entitled 
 to issue execution against any other person as being a member 
 of the firm, he may apply to the Court or a judge for leave so 
 to do ; and the Court or Judge may give such leave if the lia- 
 bility bo not disputed, or if such liability be disputed, may 
 order that the liability of such person be tried and determined 
 in any manner in which any issue or question in an action 
 may be tried and determined. 
 
 See Eng. R. Sup. C, O. XLII., r. 8. 
 
 See all the rules as to partners collected in notes to 0. IV., r. 2. 
 
 In J. C. Scripture v. Gordon & S. L. J. Scripture, 7 P. R. 164, a judgment 
 recovered against the two defendants, who were partners, was paid by the defend- 
 ant G., who thereupon issued execution against his co-defendant S. on the judgment 
 for half the amount. It appeared that the partnership accounts were unsettled, 
 and that an award had been made in favour of S., the validity of which was 
 disputed bv G. : — Held, that under 26 Vic, c. 45, s. 4, the execution was improperly 
 issued, and it was set aside. 
 
 347. 
 
 9. No writ of execution shall be issued without the party 
 issuing it, or his solicitor, filing a prcBcipe for that purpose. 
 The praecipe shall contain the title of the action, the date of 
 the judgment, and of the order, if any, directing the execu- 
 tion to be issued, the names of the parties against whom, or 
 of the firms against whose goods, the execution is to be issued ; 
 and shall be signed by or on behalf of the solicitor of the 
 party issuing it, or by the party issuing it if he do so in per- 
 son. The forms in Appendix (E) hereto may be used, with 
 such variations as circumstances may require. 
 
 See Eng. B. Sup. C, O. XLII., r. 10, as amended by R. Sup. C, June, 1876, 
 r. 17. 
 
 348. 
 
 10. Every writ of execution shall be indorsed with the name 
 and place of abode or office of business of the solicitor actually 
 suing out the same ; and when the solicitor actually suing out 
 the writ shall sue out the same as agent for another solicitor, 
 the name and place of abode of such other solicitor shall also 
 be indorsed upon the writ ; and in case no solicitor shall be 
 employed to issue the writ, then it shall be indorsed with a 
 
EXECUTION. 
 
 339 
 
 , June, 1876, 
 
 memorandum expressing that the same has been sued out by o.xxxviii 
 the plaintiff or defendant in person, as the case may be, men- "• *•• 
 tioning the city, town, or other place, and also the name of the 
 street, and number of the house of such plaintiff's or defen- 
 dant's residence, if any such there be. 
 
 See Eng. R. Sup. C, O. XLII., r. 11; Reg. Gen. T. T., 1856, No. 55, Ont. 
 
 349. 
 
 11. Every writ of execution shall bear date of the day on 
 which it is issued. The forms in Appendix (J) hereto may 
 be used, with such variations as circumstances may require. 
 
 See Eng. R. Sup. C, O. XLIL.'r. 12. 
 See O. II., r. 5. 
 
 350. 
 
 12. In every case of execution the party entitled to execution 
 may levy the poundage, fees, and expenses of execution-, over 
 and above the sum recovered. 
 
 See Eng. R. Sup. C, O, XLII., r. 13 ; R. S. 0., c. 66, s. 44. 
 
 As to when a sheriff is entitled to poundage under fi. fa. goods, see Thomas v. 
 Cotton, 12 Q. B. 148 ; Michie v. Reynolds, 24 Q. B. 303 ; Morris v. Boulton, 2 C. 
 L. Oh. 60 ; Gilespie v. Shaw, 10 U. C. L. J. 100 ; Grant v. Corporation of the 
 City of Hamilton, 2 U. C. L. J. N. S. 262 ; McRoberts v. Hamilton, 7 Pr. R. 
 95 ; Consolidated Bank v. Bickford, 7 Pr. R. 172 ; when he ih not so entitled, 
 gee Walker v. Fairfield, 8 C. P. 95 ; Buchanan v. Frank, 15 C. P. 196 ; Henry v. 
 Commercial Bank, 17 Q. B. 104 ; Winters v. Kingston Permanent Building 
 Society, 1 Ch. Ch. R. 276 ; Brown v. Johnston, 5 U. 0. L. J. 17. As to poundage 
 on fi. fa. lands, see Gates v. Crooks, 3 0. S. 286 ; Leeming v. Hagerman, 5 O. S. 
 38 ; Morris v. Boulton, 2 C. L. Ch. 60. 
 
 The Court will not interfere on a strict legal ground to reduce the sum indorsed 
 to levy on a fi. fa. unless the defendant has an equitable ground to sustain hia 
 application, Maitland v. Secord, Dra. 456 ; in a /i. fa. and the indorsements 
 thereon the plaintiffs were styled defendants, and vice vena, the words being 
 transposed throughout, and the Christian names of the defendants were also trans- 
 posed : — Held, clearly irregular, Davidson v. Grange, 5 Pr. B. 258. 
 
 In the absence of fraud the Court will only direct the levy to be reduced, Mc- 
 Cormack v. Melton, 1 A. & £. .331 ; and where the sum indorsed if too much, has 
 been really levied, the Court may direct the overplus to be refunded, Barehead v. 
 Hall, 8 Dowl. P. C. 796. If too little has been levied, the Court may allow plain- 
 tiff to amend the indorsements, Hunt v. Possmore, 2 Dowl. P. C. 414 ; Smith v. 
 Dickinson, 13 L. J. Q. B. 151. 
 
 351. 
 
 13. Every writ of execution for the recovery of money shall 
 be indorsed with a direction to the sheriff, or other officer or 
 person *o whom the writ is directed, to levy the money really 
 due and payable and sought to be recovered under the judg- 
 ment, stating the amount, and also to levy interest thereon, if 
 sought to be recovered, at the rate of 6 per cent., per annum 
 
 
 f. 
 
 
 fi^ 
 
W\Tf 
 
 340 
 
 JUDICATURE ACT. 
 
 o.xxxTiii from the time when the judgment was entered up ; provided 
 
 • **• that in cases where there is an agreement between the parties 
 
 that more than 6 per cent, interest shall be secured by the 
 
 judgment, then the indorsement may be accordingly to levy the 
 
 amount of interest so agreed. 
 
 See Eng. R. Sup. C, O. XLII.. r. 14 ; Reg. Gen. T. T., 1856, No. 55, Ont. 
 
 It was held by Proudfoot, V. 0., in St. John v. Rykert, 26 Gr. 249, that where 
 the defendant had agreed to pay a rate of interest higher than 6 per cent, until 
 payment of the principal, that the writ might be indorsed for the rate agreed 
 upon. This was, however, reversed in appeal, S. 0. 4 App. R. 213. 
 
 ^t, '■ 
 
 353. 
 
 14. Every person to whom any sum of money or any costs 
 shall be payable under a judgment, shall, immediately after the 
 time when the judgment was duly entered, be entitled to sue 
 out one or more writ or ■writsoi fieri facias to enforce payment 
 thereof, subject nevertheless as follows : 
 
 • 
 (a) If the judgment is for payment within a period therein 
 mentioned, no such writ as aforesaid shall be issued 
 until after the expiration of such period ; 
 
 (6) The Court or Judge at the time of giving judgment, 
 or the Court or a Judge afterwards, may give leave to 
 issue execution before, or may stay execution until any 
 time after the expiration of the period hereinbefore 
 prescribed. 
 
 353. 
 
 15. A writ of execution if unexecuted shall remain in force 
 for one year only from its issue, unless renewed in the manner 
 hereinafter provided ; but such writ may, at any time before 
 its expiration, be renewed by the party issuing it, for one 
 year from the date of such renewal, and so on from time 
 to time during the continuance of the renewed writ, — either 
 by being marked in the margin with a memorandum signed 
 by the proper officer who issued such writ, or by his suc- 
 cessor in office, stating the date of the day, month, and 
 year of such renewnl, or by such party giving a written 
 notice of renewal to the sheriff, signed by the party or 
 his attorney, and having the like memorandum ; and a writ 
 of execution so renewed shall have effisct, and be entitled to 
 priority, according to the time of the original delivery thereof 
 
 See Eng. R, Sup. G., 0. XLII., r. 16 ; R. S. 0., c. 66, a. 11. 
 
f I «^ 
 
 EXECUTION. 
 
 341 
 
 'IP 
 
 ! i 
 
 III 
 
 It shall not be necessary to issue any writ directed to the sheriff of the count> O. JtXXVIII 
 in which the venue is laid, but writs of execution may issue at once into any B. IS. 
 county, and be directed to, and be executed by, the sheriff of any county, without 
 reference to the county in which the venue is laid, and without any suggestion of 
 the issuing of a prior writ into such county, R. S. O., c. 66, s. 8. 
 
 Anv person who becomes entitled to issue a writ of execution against goods and 
 chattels may, at or after the time of issuing the same, issue a writ of ex(!Cution 
 against the lands and tenements of the person liable, and deliver the same to the 
 sheriff to whom the writ against goods is directed, at or after the time of delivery 
 to him of the writ against goods, and either before or after any return thereof, R. 
 S. 0. c. 66, s. 14. 
 
 " ImmediaMy" — See notes to rule 1 of this Order. 
 
 This is a re-enactment of R. S. O., c. 66, s. 11, except that the renewal of a writ 
 is now to " by leave of the Court or a Judge." 
 
 The R. SO., c. 66, s. 11, required the writ itself to have marked on the margin 
 a memorandum of the renewal, but by this rule the memorandum may be ona writ- 
 ten notice of the renewal. 
 
 " Giving a vn-itten notice." — For form, see Forms, No. 31. 
 
 354. 
 
 16. The production of a writ of execution, or of the notice 
 renewing the same, purporting to be marked with the memor- 
 andum in the last preceding Rule mentioned, shewing the same 
 to have been renewed, shall be sufficient 'prima facie evidence 
 of its having been renewed. 
 
 See Eng. R. Sup. C, 0. XLII., r. 17. 
 
 Under this section the production of the writ, or of the notice of the renewal, 
 indorsed with the memorandum, is sufficient prima facie evidence of its having 
 been renewed, while R. S. 0., c. 66, s. 12, provided that production of the writ 
 marked as renewed " shall be sufficient evidence " of its having been renewed. 
 
 355. 
 
 17. As between the original parties to a judgment, execution 
 may issue at any time within 6 years from the recovery of 
 the judgment. 
 
 See Eng. R. Sup. C, O. XLII., r. 18. 
 
 This is practically a re-enactment of the provision in the Com. Law Pro. Act, 
 that "Dpnng the lives of the parties to a judgment, or of any of them, execution 
 mav be issued at any time within six years from the recovery of the judgment, 
 without a revival thereof by scire facias, or writ of revivor," R. S. 0., c. 50, s. 322. 
 
 356. 
 
 18. Where 6 years have elapsed since the judgment, or where 
 any change has taken place by death or otherwise in the parties 
 entitled or liable to execution, the party alleging himself to 
 be entitled to execution may apply to the Court or a Judge 
 for leave to issue execution accordingly. And such Court or 
 Judge, if satisfied that the party so applying is entitled to 
 issue execution, may make an order to that effect, or may order 
 that any issue or question necessary to determine the rights of 
 
342 
 
 JUDICATURE ACT. 
 
 '?:!| 
 
 iM 
 
 ,»l|. 
 
 ![■ "! .':; 
 
 o.xxxiriii (jIjq parties, shall be tried in any of the ways in which any ques- 
 *• ***• tion in an action may be tried. And in either case such Court 
 
 or Judge may impose such terms as to costs or otherwise, as 
 
 shall seem just. 
 
 See Eng. R. Sup. C, O. XLII., r. 19. 
 
 ' ' Court or a Judge."— See notes to O. IV., r. 1 (a). 
 
 "Any of the ways."— See notes to sec. 47 of the Act. 
 
 Execution issued after the time limited without a writ of revivor is voidable, 
 not void, Goodtitle v. Badtitle, 9 Dowl. P. C. 1009 ; Blanchenay v. Burt, 4 Q. B 
 707 ; McNally v. Stephens, Taylor, 263. 
 
 On an application to enforce a judgment more than ^wenty years old, the 
 applicant was held bound to state circumstances to shew & prima facie right on hia 
 part, Loveless v. Richardson, 4 W. R. 617. 
 
 357. 
 
 19. Every order of the Court or a Judge, whether in an 
 action, cause, or matter, may be enforced in the same manner 
 as a judgment to the same effect. 
 
 12. 
 
 See Eng. R. Sup. C, O. XLII., r, 20 ; R. S. O., c. 67, s. 
 
 A defendant in a suit in Chancery gave judgment in an action at law "to be 
 dealt with as the Court shall direct":— Held, that although liberty to enforce the 
 judgment would not generally be given until the merits of the case were disposed 
 of, the Court was not precluded from allowing execution to issue at an earlier stage 
 of the cause, Hodges v. Fincham, L. R. 1 Ch. D. 9. 
 
 This rule does not say that the order shall constitute a judgment, b\:t only that 
 it shall be enforceable in the same way. The provisions with •»';•< vt to attach- 
 ments of debts and the machinery given by O. XLI., r. 5, ; 
 only. It was not intended that orders should forallpur^< . 
 judgments. It was therefore held that an order dismissing .: ^ a 
 for want of prosecution, is not enforcible by attachment of HiOt 
 r. 5, Crenietti v. Crom, L. R. 4 Q. B. D. 225 ; see Sprunt v. Pugh, J! i 
 to issuing without leave of the Court a writ of sequestration against the estate a.nd 
 effects of a receiver or other person for disobedience of an order of the Court. 
 
 Qucere.— Whether a, yrrit oi sequestration can be properly issued to enforce a 
 simple judgment for a debt, or to enforce an order upon a judgment debtor's 
 summons, Exparte Nelson ; In re Hoare, L. R. 14 Ch. D. 41. 
 
 ,.. judinnents 
 
 juivalent to 
 
 :■> with costs, 
 
 'er O. XLL, 
 
 ) Oh. D. 567, »3 
 
 ,! r 
 
 li 
 
 M 
 
 358. 
 
 20. In cases other than those mentioned in Rule 17, any per- 
 son, not being a party in an action, who obtains any order or 
 in whoso favour any order is made, shall be entitled to enforce 
 obedience to such order by the same process as if he were a party 
 to the action ; and any person not being a party in an action, 
 against whom obedience to any judgment or order may be 
 enforced, shall be liable to the same process for enforcing 
 obedience to such judgment or order as if he were a party to 
 the action. 
 
 See Eng R. Sup. C, O. XLII., r. 21; O. O. Chy. No. 297. 
 
EXECUTION. 
 
 348 
 
 111 
 
 -ff ft 
 
 369. 
 
 21. No proceeding by audita querela shall hereafter beo.xauKViii 
 used ; but any party against whom judgment has been given b. 91 
 may apply to the Court or a Judge for a stay of execution or 
 other relief against such judgment, upon the ground of facts 
 which have arisen too late to be pleaded ; and the Court or 
 Judge may give such relief, and upon such terms, as may be 
 just. 
 
 See Eng R, Sup. 0., O. XT>II. r. 22. 
 
 '^Audita querela."— "By R. S. O. c. 50, 8. 132, any matter which, had it arisen 
 before or during the time for pleading, would have been an answer to the action 
 by way of plea, may, if it arises after the lapse of the period during which it 
 would have been pleaded, be set up by way of audita querela. Audita querela is a 
 remedial writ invented to prevent a defect of justice in cases where a party having 
 a good defence has no opportunity of making it by the ordinary process of law. 
 As to when it lies, see Harrison's C. L. P. A. 177. 
 
 360. 
 
 22. Nothing in any of the Rules of this Order shall take 
 away or curtail any right heretofore existing to enforce or give 
 effect to any judgment or order in any manner or against any 
 person or property whatsoever. 
 
 See Eng. R. Sup. C, O. XLII., r. 23. 
 
 See Anglo-Italian Bank v. Davies, L. R. 9 Ch. D. 275. 
 
 361. 
 
 23. Nothing in this Order shall affect the order in which 
 writs of execution may be issued. 
 
 See Eng. R. Sup. C, O. XLII., r. 24. 
 
 R. S. O. c. 66, s. 33, provides as follows : — 
 
 Where a writ against the goods of a party has issued from any of the Superior 
 or County Courts, and a warrant of execution against the goods of the same party 
 has issued from a Division Court, the right to the goods seized shall be determined 
 by the priority of the time of the delivery to be executed of the writ to the sheriff, 
 or of the warrant to the bailiff of the Division Court ; and the sheriff, on demand, 
 shall by writing, signed by him, or his deputy, or a clerk in his office, inform the 
 bailiff of the precise time of such delivery of the writ, and the bailiff, on demand, 
 shall shew his warrant to any sheriff's officer ; and such writing purporting to be 
 80 signed, and the indorsement on the warrant shewing the precise time of the 
 delivery of the same to such bailiff, shall respectively be sufficient justification 
 to any bailiff or sheriff acting thereon. 
 
 V- 
 
i'H 
 
 344 
 
 JUDICATURE ACT. 
 
 ORDER XXXIX. 
 Writs of Fieri Facus, &c. 
 
 'm 
 
 m 
 
 3613. 
 
 o. XXXIX. 1. Writs of JieA facias shall have the same force and effect 
 "• '• as the like writs have heretofore had, and shall be executed in 
 
 the same manner in which the like writs have heretofore been 
 
 executed. 
 
 See Eng. R. Sup. C, O. XLIIL, r, 1. 
 
 Under an execution against goods there may be seized and sold : (1] All goods and 
 chattels, except those exempted under R. S. O., c. 66, s. 2. (2) AH snares and 
 dividends ot stockholders in any incorporated bank or other company in Ontario 
 having tranFfarable joint stock, K. S. O., c. 66, s. 20. All corporations established 
 for.the purpose of trade or profit, or for the construction of any work, or for any 
 purpose from which revenue is intended to be derived, shall be deemed incorporated 
 companies for the purposes of the Act, lb. s. 26. (3) The interest or equity of 
 redemption in any goods or chattels, including leasehold interests. in any lands, of 
 the party against whom the writ issued, lb. a. 27. Any money or bank notes 
 (including any surplus of a former execution against the debtor), and any cheques, 
 bills of exchange, promissory notes, bonds, mortgages, specialties or other securities, 
 for money belonging to the person against whoEe effects the writ has issued may be 
 seized. Money or bank notes may be delivered to the execution creditor and the 
 cheques, etc., may be held by the sheriff and the amounts secured sued for in his 
 own name. Under an execution against lands tl ere may be seized and sold : (1 ) The 
 lands and tenements of the person liable, R. S. O., c. 66, s. 14. As to the estates 
 or interests therein which can be sold, see Harrison's C. L. P. A. 358, note {g). 
 (2) Under a writ against the lands and tenements of any mortgagor of real estate, 
 the sheriff may seize or take in execution all the legal and equitable interest of the 
 mortpagor in the mortgaged lands and tenements, R. S. O., c. 66, s. 3n. (3) Any 
 estate, right, tit^e, or interest in lands which under the .5th sec. of the Act respect- 
 ing the transfer of real property may be conveyed or assigned by any party, or over 
 which such party has any disposing power which he may without the assent of any 
 other person exercise for his own benefit, lb. s. 39. 
 
 For forms of writs of fieri facias, see Forms,|Xos. 175 &; 176. 
 
 363. 
 
 2. Writs of venditioni exponas may be issued and executed 
 in the same cases and in the same manner as heretofore. 
 
 See Eng. R. Sup. C, O. XLIIL, r. 2. 
 
 By R. S. 0., c. 66, s. 72, it is provided that for the purpose of enforcing payment 
 of any monev or any costs, charges, or expenses, payable by any decree or order of 
 the Court of Chancery, or any rule or order of the Courts of Queen's Bench or 
 Common Pleas, or any rule or order of a County Court, the person to receive i)ay- 
 ment shall be entitled to writs of fi. fa. and venditioni exponag respectively against 
 the property of the person to pay, and shall also be entitled to attach and enforce 
 payment of the debts of or accruing to the person to pay in the same manner res- 
 pectively and subject to the same rules, as nearly as may be, as in the case of a 
 judgment at law in a civil action. 
 
 For form of writ of venditioni exponas, see Forms, .No. 177. 
 
ATTACHMENT OP THE PERSON. 
 
 345 
 
 ORDER XL. 
 
 Attachment op the Person. 
 
 '1 r 
 
 364. 
 
 1. A writ of attachment against the person shall be issued o. xi<. 
 under the same circumstances and id the same manner and shall •*• *• 
 have the same effect as heretofore according to the practice of 
 
 the Court of Chancery. 
 
 See Eng. R. Sup. C, O. XLIV., r. 1 ; R. S. O., c. 67, as. 10, 11 ; G. O. Chy. 
 Nos. 288-294. 
 
 If a party who is ordered, otherwise than by an order of course, to do any act 
 other than to pay money, in a limited time, refuses <y neglects to obey the order 
 according to the exigency thereof, the party prosecuting the order shall, at the ex- 
 piration of the time limited, upon filing an affidavit of the service of the order, 
 and of the non-performance thereof, be entitled, upon praecipe, to a writ or writs of 
 attachment against the disobedient party, Cr. (). Chy. No. 188. 
 
 A warrant to the sheriff to commit a party is not irregular, though no return 
 day is mentioned in it, Prentiss v. Brennan, 1 Gr. 497. On a motion to commit for 
 breach of an injunction, it is not necessary for the affidavit to state that the writ 
 was under the seal of the Court, Farwell v. Wallbridge, 3 Gr. 628. An attachment 
 to commit for contempt will not be granted merely for non-payment of the costs 
 of the contempt, Dickson v. Cook, 1 Ch. Ch. R. 210 ; bttt see dorbett v, Meyers, 1 
 Ch. Ch. R 26 ; Harris v, Meyers, 1 Ch. Ch. 229. It is improper to have recourse 
 to an attachment when the object can be attained without such process, Mason 
 V. Seeney, 2 Ch. Ch. R. 220. 
 
 A person in contempt cannot take any step in the cause until he has cleared his 
 contempt, but he may move to discharge an order made against him adversely, 
 Futvoye v. Kennard, 2 Giff. 110; or shew that subsequent proceedings are irregular, 
 King V. Bryant, 3 M. & C. 191 ; Morrison v. Morrison, 4 Ha. 590. 
 
 In case the part^ shall be taken or detained in custody under the writ of attach- 
 ment without ooeying the order, then upon the sherifif's return that the party has 
 been so taken or detained, the party prosecuting the order shall be entitled upon 
 praecipe to a commission of sequestration against the estate and effects of the dis- 
 obedient party, G. O. Chy. No. 289. 
 
 If an attachment cannot be executed against the party refusing or neglecting to 
 obey the order by reason of his being out of the jurisdiction of the Court, or of his 
 having absconded, or that with due diligence he cannot be found, and the Court is 
 satisfied by affidavit that such is the case, the party prosecuting the order shall be 
 entitled to an order for a commission of sequestration a«ainst the estate and effects 
 of the disobedient party : and it shall not be necessary for that purpose to sue out 
 an attachment, G. O. Chy. No. 290. 
 
 Where a defendant, in default for non-compliance with a direction of a Master, 
 was resident out of the jurisdiction of the Court : — Held, that an order for attach- 
 ment against him could be properly made, Bloomfield v. Brooke, 6 P. R. 264. 
 
 365. 
 
 2. No such writ of attachment shall bo issued without the 
 leave of the Court or a Judge, to be applied for on notice to the 
 party against whom the attachment is to be issued. 
 
 See Eng. R. Sup. C, O. XLIV., r. 2. 
 
 '\ i 
 
 Vi i 
 
 ,i,% 
 
TFT 
 
 M 
 
 m 
 
 346 
 
 O. XL. 
 11.9. 
 
 JUDICATURE ACT. 
 
 The costs of an attachment are no longer fixed, but by O. LV., r. 1 (Ont. Act, 0. 
 L., r. I).th9y are in the discretion of the Court, and should be disposed of at the 
 application for the writ under O. XLIV., r. 2 (Ont. Act, O. XL., r. 2), Abud v. 
 Riches, L. R. 2 Ch. D. 528. 
 
 An attachment against the sheriff for not returning a writ of Ji. fa. is not, as 
 formerl}', obtained as of course ; but since O. XLIV., r. 2 (Ont. Act, O. XL., r. 2), 
 can only be applied for "on notice," Jupp v. Cooper, L. R. 5 C. P. D. 26. 
 
 Where a notice of motion is given for a writ of attachment to issue against a 
 defendant, under O. XLIV., r. 2 (Ont. Act, 0. XL., r. 2,) service of such notice 
 on the solicitors on the record of the defendant is sufficient service. Browning v. 
 Sabin, L. R. 6 Ch. D. 511 ; Richards v. Kitchin, 36 L. T. N. S. 730; 25 W. R. 602. 
 
 A notice of motion in any action or matter for the issue of a writ of attachment 
 under above Order and rule may be served by leaving the same at the place of 
 residence of the party affected thereby. In re a Solicitor, L. R. 14 Ch. D. 1 52. This 
 case was, however, decided upon the ground that O. XLVII., r. 8, did not coyer 
 this case, and that the ordinary way prior to the .Judicature Act in which a notice 
 of motion was given was by leaving it at the place of residence of the respondenti 
 see notes to O. XLVII., r. 3. 
 
 ORDER XLI. 
 
 Attachment op Debts. 
 
 'W 
 
 O. Xlil. 
 B. 1. 
 
 366. 
 
 1. Where a judgment is for the recovery by, or payment to, 
 any person, of money, the party entitled to enforce the judg- 
 ment, may without an order examine the judgment debtor 
 upon oath before a Master, or Local Master, or an Examiner 
 or before one of the Clerks or Deputy Clerks of the Crown, 
 or before the Judge of the County Court of the County 
 within which such debtor resides, or before any official referee, 
 touching his estate and effects, and as to the property and 
 means he had when the debt or liability which was tne subject 
 of the action in which judgment has been obtained against 
 him was incurred, and as to the property and means he still 
 has of discharging the said judgment, and as to the disposal 
 he has made of any property since contracting such debt or 
 incurring such liability, and as to any and what debts are 
 owing to him. 
 
 See Eng. R. Sup. C, 0. XLV.; and R. S. O., o. 50, a. 304 ; c. 49, s. 17. 
 
 " Without any order."— An order was necessary under the former practice and 
 is still necessary in England. A form of an order to be made by a Judge in 
 Chambers is, no doubt by oversight, given among the Forms, No. 138. 
 
 A plaintiff in an ejectment suit has been held not a judgment creditor within 
 the meaning of the corresponding section of the Common Law Procedure Act, 
 Challen v. Baker, 26 L. T. 206 ; but see Ekart v. MoCall, 17 Can. L. J. 82 ; 
 nor is the Queen, Regina v. Benson, 2 Pr. R. 350 ; but a party to an inter- 
 pleader who has obtained an order for costs is a creditor within the Act, Hartley 
 V. Shemwell, 1 B. &; S. 1. 
 
■' fifl 
 
 ATTACHMENT OF DEBTS. 
 
 347 
 
 A judgment debtor who is an exc-acor is within this clause, Burton v. Roberts, O. Xlil. 
 6 H. & N. 93. H. I. 
 
 The order for examination may be made though the debtor has been arrested on 
 final nrooess at the suit of the judgment creditor, Brown v. Benniger, 2 U. 
 0. L. J. 213. 
 
 It is not necessary that the affidavit to obtain an oral examination of the debtor 
 should shew that there are debts due, Nimmo v. Welland, 2 U. C. L. J., 213. 
 
 The examination of a judgment debtor under Rules of Court, touching the debts 
 due to him is intended to be a cross-examination of the strictest character, and the 
 debtor when under such an examination is bound to answer all questions relevant 
 to the subject matter, and cannot insist on the examination being confined to the 
 simple question " whether any and what 'debts are due to him," Republic of Costa 
 Rica V. Strousberg, L. R. 16 Ch. D. 8. 
 
 In cai<e such debtor does not attend as required by the said rule or order, and 
 does nut allege a sufhcient excuse for not attending, or, if attending, he refuses to 
 disclose his property, or his transactions respecting the same, or does not make 
 satisfactory answers respecting the same, or if it appears from such examination 
 tliat such debtor has concealed or made away with his property in order to defeat 
 or defraud his creditors, or any of them, such Court or Judge may order such 
 debtor to be committed to the common jail of the county in wliich he resides, for 
 any term not exceeding twelve months ; or such Court or .Judge may, by rule or 
 order, direct that a writ of capias ad satisfaciendum may be issued against such 
 debtor, and a writ of capias ad satisfaciendum may thereupon be issued upon such 
 judgment, or, in case such debtor is at large upon bail, "uch Court or Judge may 
 make a rule or order for such debtor's being committed to close custody, and the 
 sheriff, on due notice of such rule or order, shall forthwith take such debtor and 
 commit him to close custody until he obtains a rule of Court or a Judge's order for 
 again allowing him to go out of close custody, on giving the necessary bond in that 
 behalf, or until he is otherwise discharged in due course of law. 
 
 Where a defendant was examined as a judgment debtor and admitted on his 
 examination that he had in his possession a sum of money which he had acquired 
 by betting, and not by converting his property into money, and which he then 
 refused to hand over, an order to commit him on the ground that he had made 
 unsatisfactory answers within the meaning of sec. 30.5 of the Com. Law Pro. Act 
 was granted, Merrill v. McFarren, 1 C. L. T. 133 ; and see editor's note as to this 
 case, lb. 217. 
 
 A party applying for the attachment of a judgment debtor for non-compliance 
 with an order for his oral examination, must make an affidavit that conduct money 
 has been tendered to the debtor, and also there must be an affidavit shewing some 
 good reason for not examining the debtor at his place of residence, and also that 
 there were no other means of ascertaining what debts were owing to the debtor, 
 Protector Endowment Co. v. Whitlam, 36 L. T .N. S, 467. 
 
 Equitable debt. — In Wilson v. Dundas and Stephenson (Garnishees), W. N. 
 (1875) 232, an application was made by the plaintiff, the judgment creditor, to 
 attach a half year's salary, due to the judgment debtor from his trustees, the de- 
 fendants. The garnishees contended that this was a trust debt, and therefore not 
 attachable ; and, further, that the debt was not due. Quain, J., held that under 
 the new Judicature Act, there was no distinction between a legal and an equitable 
 debt and that there could be an attachment of an equitable debt, and that it was 
 not necessary tha*^ the debt should be due, as the words of Order XLV., r. 2 (Ont. 
 Act, O. XLI., r. I), were "debts owing or accruing." As, however, the garnishee 
 disputed his liability, he ordered a special case to be stated for determining the 
 question under Order XLV,, r. 5 (Ont. Act, O. XLI., r. 8). 
 
 367. 
 
 2. In case the judgment is against a body corporate, the 
 person entitled to enforce the judgment may in like manner 
 examine any of the officers of such body corporate, upon oath, 
 before the Judge of the County Court, or other officer, referred 
 to in the next preceding rule, touching the names and resi- 
 
348 
 
 JUDICATURE ACT. 
 
 H 
 
 : 
 
 O. XIjI, 
 
 ':!' 
 im' 
 
 ii 
 
 dences of the stockholders in said body corporate, the amount 
 and particulars of stock held or owned by each stockholder, 
 and the amount paid thereon ; also as to any and what debts 
 are owing to the said body corporate ; and as to the estate and 
 effects of the body corporate ; and as to the disposal made by 
 the body corporate of any property since contracting the debt 
 or liability, in respect of which the said judgment was obtained. 
 
 See R. S. O., o. 49, b. 19. 
 
 As there U no way of orally examining a corporation but through its directors 
 and officers, it haR been held that no examination of a corporation could be had 
 under the corresponding section of the Common Law Procedure Act, as no pro- 
 vision is made for such an examination, Dickson v. The Neath & Brecon Railway 
 Co., 19 L. T. N. S. 702 ; and see Cameron v. The Brantford Gas. Co., 2 P. R. 68. 
 
 See notes to 0. XXVII., r. 1. 
 
 368. 
 
 3. Any person liable to be examined under either of the pre- 
 ceding two rules may be compelled to attend and testify, and 
 to produce books and documents, in the same manner and 
 subject to the same rules of examination, and the same con- 
 sequences of neglecting to attend or refusing to disclose the 
 matters in respect of which he may be examined, as in the 
 case of a witness. 
 
 See notes to 0. XXVII., r. 1. 
 
 •369. 
 
 4. Any person liable to be examined under either of the two 
 preceding Kules, may be served with an appointment signed by 
 the Judge or officer ; such service to be made at least 48 hours 
 before the time appointed for the examination ; and the person 
 to be examined is to be paid the same fees as a witness. 
 
 *' 48 hours before." — As to computation of time, see 0. LII. 
 
 (a) In case of such service, the same shall have the same 
 effect as the service of a Rule or Order under the pre- 
 sent practice, for the purposes of the 18th and 19th 
 sections of the Administration of Justice Act, and the 
 305th section of the Common Law Procedure Act. 
 
 370. 
 
 6. The Cour!; or a Judge may, upon the ex 'parte application 
 ot the judgment creditor, or the person entitled to enforce the 
 judgment, either before or after the oral examination mentioned 
 in uie preceding two rules, and upon affidavit by himself or his 
 
 .!i; 
 
'I 
 
 ATTACHMENT OP DEBTS. 
 
 349 
 
 solicitor, or some other person or persons awn re of the facts re- **• **'■■ 
 
 speetively, stating that judgment has been recovered, and that "' *" 
 it is still unsatisfied, and to what amount, and that any other 
 person is indebted to the judgment debtor, and is within 
 Ontario, order that all debts owing or accruing from such third 
 person (hereinafter called the garnishee) to tlie judgment 
 debtor, shall be attached to answer the judr;inent debt ; and 
 by the same or any subsequent order it may be ordered that 
 the garnishee shall appear before the Court or a Judge or an 
 officer of the Court, as such Court or Judge shall appoint, to 
 shew cause why he should not pay the judgment creditor, or 
 the person entitled to enforce the judgment, the debt due from 
 such garnishee to the judgment debtor, or so much thereof 
 as may be sufficient to satisfy the judgment debt. 
 
 See Eng. R. Sup. C, 0. XLV., r. 2 ; R. S. 0., c. 50, a. 307. 
 
 An order diamissina; an action with costs for want of prosecution is not enforo- 
 ible by attachment of debts, Cremetti v. Crom, L. R. 4 Q. B. D. 225. 
 
 The affidavit will not be dispensed with and mnst be positive and explicit, 
 Gataraqui Road Co. v. Dunn, 3 U. C. L, J. 27 ; but if sufficient grounds be shewn 
 for an affidavit founded on belief, it will be sufficient, Hazelwood v, DeBergue, 3 
 U. 0. L. J. 28 ; and see McLaren v. Sudworth, 4 U. C. L. J. 233. 
 
 An affidavit of the agent of the attorney is not sufficient. Tiffany v. Bullen, 18 
 C. P. 91 ; Boyd v. Haynes, 5 Pr. R. 15. 
 
 A judgment creditor cannot attach a debt due by himself, or by a firm in which 
 he is a partner, Nonell v. Hullett, 4 B. & Aid. 646. 
 
 The nature of the indebtedness should be fully stated, but where a judge granted 
 an order without this, the Court refused to set it aside, Tiifany v. Bullen, 18 C. P. 
 91. An order to attach will be granted, althiugh the amount be not stated ; but 
 it must be stated in a summons to pay over, Meldrum v. Tulloch, 3 U. C. L. J. 
 184 ; but see Bank of British North America v. Laughbrey, 2 U. C. L. J. N. S. 44. 
 
 If the garnishee, though residing out of the jurisdiction, have money in the hands 
 of an agent within the jurisdiction, the money may be attached, provided the cred- 
 itor shews plainly that there is such an agent, in addition to the ordinary contents 
 of the affidavit. Brown v. Merrills, 3 U. C. L. J. 31 ; the case of a foreign corpora- 
 tion is different, Lundy v. Dickson, 6 U. C. L. J. 92; Bank of British North 
 America v. Laughbrey, 2 U. C. L. J. N. S. 44. 
 
 Any debt that a defendant could set off at law against his creditor may be at- 
 tached, McNaughton v. Webster, 6 U. C. L. J. 17 ; the recovery of a verdict for a 
 debt which might have been attached before any action brought for its recovery, 
 will not make it leas a subject of attachment, McKay v. Tait, 11 C. P. 72 ; the 
 surplus money arising from the sale of mortgaged premises in the hands of the 
 mortgagee, may be attached on a judgment against the mortgagor, McKay v. 
 Mitchell, 6 U. C. L. J., 61. Money in the hands of a Division Court bailiff may 
 be attached, Lockart v. Gray, 2 U. C. L. J. N. S. 163 ; or in the hands of a sheriff. 
 In re Smart v. Miller, 3 Pr. R. 385 ; and a sum of money directed by a decree or 
 order to be paid :s a debt which is attachable. Cotton v. Vansittart, 6 P. R. 96. 
 
 A garnishee order was made under the rule attaching a debt. At the time the 
 order was made the garnishees had given the judgment creditor a cheque for the 
 amount of the debt. Upon service of the order on the garnishees they stopped 
 payment of the cheque at the Bank, the cheque not having b^n presented : —Held, 
 that upon the cheque being stopped it was as if it had never oeen given, and that 
 there was therefore an existing debt capable of being attached, and the garnishee 
 order was effectual, Cohen v. Hale, L. R. 3 Q. B. D. 371. 
 
 A debt due to an administrator as such cannot be attached to answer a debt due 
 to him in his private capacity, Bowman v. Bowman, 1 Ch. Ch. R. 172 ; Mao- 
 
 « !.,. 
 
 
 ri 
 
350 
 
 JUDICATURE ACT. 
 
 V 
 
 m 
 
 O' XIjI. aulay v. Rumball, 19 C. P. 284. Rent to become due at a fature time caimot be 
 
 B. Si, attached, Commercial Bank v. Jarvis, 5 U. C. L. J. 66 ; and see McLaren v. Sud- 
 
 worth, 4 U. C. L. J. 233. 
 
 As to other cases of debt which cannot be attached, see Campbell v. Pe<';en, 3 
 U. C. L. J. 68 ; Smith v. Trust & Loan Co. of Upper Canada, 22 Q. B. 525 ; O wynne 
 V. Rees, 2 Pr. R. 282 ; Bank of Toronto v. Burton, 4 Pr. R. 56 ; Boyd v. 
 Haynes, 5 Pr. R. 15 ; Commercial Bank v. Williams, 5 U. C. L. J. 66 ; Ward v. 
 Vance, 10 U. C. L. J. 269 ; McCormick v. Park, 9 C. P. 330 ; Bescoby v. Hamilton 
 Water Commissioners, 9 C. P. 81 ; Roberts v The Corporation of the City of 
 Toronto, 16 Gr. 236 ; Caisse v. Tharp, 5 Pr. R. 565. 
 
 A mere notice to treat under the Lands Clauses Consolidation Act, Imp. Act, 
 8 & 9 Vict., c. 18 (see Dom. Stat. 42 Vict, c. 9, s. 12 ; R. S. O., c. 165, s. 20), 
 upon which nothing has been done, does not constitute a debt owing or accruing 
 which can be attached under this rule, Richardson v. Elmit, L. R. 2 C. P. D. 9. 
 
 Where the ord<ir to pay is made for too much, it may be rescinded, and money 
 paid under it recovered back in an action for money had and received. Sessions v. 
 Strachan, 23 U. C. Q. B. 492. 
 
 A garnishee order nisi does not create a charge until service of it on the garnishee. 
 A judgment creditor of the defendant in a partnership afit'on obtaineci an order nisi 
 to attach all moneys in the hands of the receiver in the action appearing to be due 
 to the defendant. On taking the accounts on the following day, and before service of 
 the order nisi thedefendent's solicitor obtained, on a summons servedon the receiver, 
 a charging order intituled in the action, declaring that they were entitled to a charge 
 for their costs upon all moneys coming to the defendant under the action. On the 
 next day the garnishee order nisi was served on the receiver, and was subsequently 
 made absolute :--Held, that the solicitor was entitled to his costs in priority to the 
 claim of the creditor under the garnishee order, Hamer v, Giles ; Giles v. Hamer, 
 L. R. 11 Ch. D. 942. A garnishee order nisi does not create a charge until service 
 of it on the garnishee, Jb. 
 
 "Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 For form of affidavit in support of garnishee order, see Forms, No. 36. 
 
 For form of garnishee order, see Forms, No. 134. 
 
 "Due or accruing due." — Under s. 61 of the Common Law Procedure Act, 1854, 
 an order may be made, not only attaching an accruing debt in the hands of the 
 garnishee, but also an o^der for payment of the accruing debt when it shall become 
 payable by the garnishee to the judgment creditor. It is not necessary to wait 
 till the debt has become actually payable before making the order for payment, 
 Tapp V. Jones, L. R. 10 Q. B. 591. In that case Blackburn, J., said : "It is 
 evident that the legislature had in view both present debt and future debt, dehita 
 in praesenti, solvenda in futuro, for it speaks m the earlier part of the section of 
 debts owing and accruing. Therefore it is clear that the attachment was good. 
 But in the latter part of the section the larjuage is altered : It speaks merely of 
 'the debts due.' Now it is quite clear that the garnishee cannot be bound to pay 
 his debt before it is due ; so that we must read ' the debt due ' ab meaning eitner 
 the debt when due, or the debt then due. If the former reading be the correct one, 
 then the present order was quite right ; if the latter, then it was premature. I 
 have come to the conclusion that the true construction is that there is power to 
 make an order against the garnishee for payment of his debts, as and when they 
 become payable, instead of making a fresh order as each falls due." 
 
 In Wilson v. Dundas & Stevenson (Garnishees) W. N. (1875) 232, on an applica- 
 tion by the plaintiff, the judgment creditor, to attach half a year's salary due to the 
 judgment debtor from his trustees, the defendants, it was contended for the 
 garnishees that this was a trust debt, and therefore not attachable, and further, 
 that the debt was not due. Quain, J., said : — "O. III., r. 6 (Ont. O. III., r. 6), 
 expressly says that there may be a special indorsement of a trust debt. If 
 Mackenzie (the judgment debtor) bring an action against his trustee he can recover 
 his half-year's salary. It is submittedf for the garnishees that there cannot be an 
 attachment of an suitable debt, but there is nc distinction now between a legal 
 and an equitable debt. I should be contravening the very object of the Judicature 
 Act if I was to hold otherwise. If we could not now attach an equitable debt 
 sitting here, we might as well be under the ancien rigime. The debt need not be 
 due, as the words of 0. XLV., r. 2 (Ont. O. XLL, r. 5), are ' debts owing or 
 accruing.' In an anonymous case in W. N. (1876) 9, an application having been 
 
ATTACHMENT OF DEBTS. 
 
 351 
 
 made to a Maoter fora garnishee order and having been refused, on the ground that O. XIil< 
 the affidavit did not state that the debt was due, that refusal was now appealed k. a. 
 against. The affidavit stated that the debt was 'owing and accruing.' " Quain, J., 
 made the order, but said that the attachment must be confined to that part of the 
 sum which was stated in the affidavit to be accruing at the time of the judgment. 
 
 In certain garnishee proceedings in the Division Court of the County of Went- 
 worth, several creditors had obtained orders attaching the whole amount, §582, found 
 due under an award from the company to the judgment debtor for a loss by fire, and 
 ordering payment thereof. Subsequently, the Judge of the County of Essex, 
 notwithstanding the opposition of the company, made a similar order to pay $208 
 to another creditor, on the ground that when the summonses in the Division Court 
 of the County of Wentworth were issued there was no attachable debt due. The 
 company unsuccessfully applied to the Judge of the County of Wentworth to 
 rescind his orders, and then filed a bill calling on the defendants, the different 
 attaching creditors, to interplead :— Held (Spragge, C, dissenting), affirming the 
 judgment of Proudfoot, V.-C., 2;S Gr. 5<i8, that it was not a proper case for inter- 
 ple'ider ; per Burton and Moss, JJ.A., that the bill was not sustainable, for the 
 atcaching creditors in Wentworth had obtained judgments in the Division Court 
 against the plaintiffs, with which the Court of Chancery could not interfere ; per 
 Burton and Patterson, JJ.A., that, under the circumstances, the Judge of the 
 County Court of Essex had no power to make a summary order for payment ; per 
 Patterson, J. A., the rights of all parties might be adjusted in the suit in the County 
 Court of Essex, and if dissatisfied with the decision there the plaintiffs might appeal 
 from it, Victoria Mutual Fire Insurance Co. v, Bethune et at, 1 App. R. '698. 
 
 As to solicitor's lien for costs, see Shippey v. Grey, W. N. (1880) 99 ; Faithful 
 V. Ewen, L. R. 7 Ch. D. 49.5 ; Cuthbert v. Commercial Travellers' Association, 7 
 Pr. R. 265 ; Wardell v. Trenouth, 8 Pr. R. 142. 
 
 ■ 3. i 
 
 371. 
 
 6. Service of an order that debts due or accruing to the 
 judgment debtor shall be attached, or notice thereof to the 
 garnishee in such manner as the Court or Judge shall direct, 
 shall bind such debts in his hands. 
 
 See Eng. R. Sup. C, O. XLV., r. 3 ; R. S. O., c. 50, s. 307. 
 
 It is not indispensable that the service should be personal, Ward v. Vance, 3 
 Pr. R. 130. See also notes to O. XLVII., r. 3. 
 
 " Bind." — See as to construction put upon the word " bind," Holmes v. Tutton, 
 5 El. & B. 65 ; Turner v. Jones, 1 H. & N. 878 ; Tilbury v. Brown, 30 L. J. Q. B. 
 46 ; and see also, Sweetnam v. Lemon, 13 U. C. C. P. 534 ; Tate v. The Corpora- 
 tion of the City of Toronto, 10 U. C. L. J. 66. See R. S. O., c. 60, s. 308. 
 
 373. 
 
 7. If the garnishee does not forthwith pay into Court the 
 amount due from him to the judgment debtor or an amount 
 equal to the judgment debt, and does not dispute the debt due 
 or claimed to be due from him to the judgment debtor, or if he 
 does not appear upon summons, then the Court or Judge may 
 order execution to issue, and it may issue accordingly without 
 any previous writ or process, to levy the amount due from 
 such garnishee, or so much thereof as may be sufficient to 
 satisfy the judgment debt. . 
 
 See Eng. R. Sup. C, 0. XLV., r. 4 ; R. S. 0., c. 50, 8. 309. 
 
 
 
 
 I n 
 
352 
 
 JUDICATURE ACT. 
 
 .>l|.' 
 
 '^ Z 
 
 :ll 
 
 O. Xlil. Upon payment into Court the urarnishee is freed from the responsibility, 
 
 B. T. Clark v. Clark, 8 U. C. L. J. 107. The subsequent execution by the debtor of a 
 
 composition deed, will not prevent the creditor being entitled to the money paid 
 
 into Court, Culverhouse v. Wickens, L. R. 3 C. P. 295. 
 
 Even after default the Judge has a discretion, Clark v. Ferry, 26 L. T. 46 ; the 
 Judges may use any of the garnishee clauses at their direction, Jones v. Jenner, 
 27 L. T. 191, Lee v. Gorrie, 1 U. C. L. J. N. S. 76. 
 
 "Court or a Judge."— See notes to 0. IV., r. 1 (a). 
 
 , Form. — For form of order to pay over, see Forma, No. 135. 
 
 373. 
 
 8. If the garnishee disputes his liability, the Court or Judge, 
 instead of making an order that execution shall issue, may 
 order that any issue or question necessary for determining his 
 liability be tried or determined in any manner in which any 
 issue or question in an action may be tried or determined. 
 
 See Eng. R. Sup. C, O. XLV., r. 5. 
 
 "Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 " Be tried or determined in any manner." — The former mode of trying such 
 issues or questions was provided for by R. S. O., c. 50, s. 310, which was as fol- 
 lows : — If the garnishee disputes his liability, the Judge, instead of making an 
 order that execution shall issue, may order that the judgment creditor may pro- 
 ceed against the garnishee by writ, calling upon him to shew cause why there 
 should not be execution against him for the alleged debt, or for the amount due to 
 the judgment debtor if less than the judgment debt, and for costs of suit, and the 
 proceedings upon such suit shall be the same, or as nearly as may be the same, as 
 upon a writ of revivor issued under this Act. 
 
 See as to the various modes of trying issues, notes to sec. 47 of the Act. 
 
 To entitle the garnishee to an order for an issue to determine his liability he 
 must satisfy the Judge that he has real ground for disputing it, Newman v. Rook, 
 4 C. B. N. S. 434 ; and that he is acting bona fide, Wise v. Birkenshaw, 29 L. J. 
 Ex. 240 ; and see Seymour v. The Corporation of Brecon, 29 L. J. Ex. 243. 
 
 Where an action is pending against the garnishee at the suit of the judgment 
 debtor, and there be no collusion oetween them, the Court will not proceed under 
 this rule, Richardson v. Greaves, 10 W. R. 45. " 
 
 If the garnishee disputes his liability and the judgment creditor declines to pro- 
 ceed to have the liability determined, the garnishee is entitled to have the attach- 
 ing order discharged with costs, Wintle v. Williams, 3 H. & N. 288. 
 
 374. 
 
 9. Where in proceeding to obtain an attachment of debts 
 it is suggested by the garnishee that the debt sought to be 
 attached belongs to some third person, or that any third 
 person has a lien or charge upon it, the Court or Judge may 
 order such third person to appear and state the nature and 
 particulars of his claim upon such debt. 
 
 SeeEng. B. Sup. C, O. XLV., r. 6; R. S. O., c. 50, R. 313. 
 
 ♦ 375. , 
 
 10. After hearing the allegations of such third person under 
 such order, and of any other person whom by the same or any 
 
ATTACHMENT OF DEBTS. 353 
 
 subsequent order the Court or a Judge may order to appear, or ®- ^^'■• 
 in case of such third person not appearing when ordered, the 
 Court or Judge may order execution to issue to levy the 
 amount due from such garnishee, or may order any issue or 
 question to be tried or determined according to the preceding 
 Rules of this Order, and may bar the claim of such third per- 
 son, or may make such other order as such Court or Judge 
 shall think fit, upon such terms, in all cases, with respect to 
 the lien or charge (if any) of such third person, and to costs, 
 as the Court or Judge shall think just and reasonable. 
 
 See Eng. R. Sup, C, O. XLV., r. 7 ; R. S. C, c. 60, a. 313, sub-8. 2. 
 " Court or a Judge," — See notes to O. IV., r. 1 (o). 
 For form of order, see Forms, No. J.35. 
 
 376. 
 
 11. Payment made by or execution levied upon the garnishee 
 under any such proceeding as aforesaid shall be a valid dis- 
 charge to him as against the judgment debtor, to the amount 
 paid or levied, although such proceedings may be set aside or 
 the judgment reversed. 
 
 See Eng. R. Sup. C, O. XLV., r. 8 ; R. S. O., c. 50 8. 317. 
 
 The mere issue of an attaching order is no defence to an action by the judgment 
 debtor against the garnishee, Lockwood v. Nash, 18 C B. 536 ; Denton v. Mait- 
 land, 11 Jur. 42. Service of the order was at one time supposed to afford a 
 defence, Carr v. Baycroft, 4 U. C. L. J. '209 ; McNaughton v. Webster, 6. U. 0. 
 L. J. 17, but it is now settled that the garnishee is not discharged as against the 
 judgment debtor, until at all events served with an order for the payment of the 
 money, Turner v. Jones, 1 H. & N. 878 ; Newman v. Rook, 4. C. B. N. S. 
 434 ; McGinnis v. The Corporation of Yorkville, 21 Q. B. 1(W, 171. The more 
 correct opinion seems to be that until payment made or execution executed under 
 the order to pay, the garnishee i.< not ilischarged, Blevins v. Madden, 11 C. P. 195 ; 
 Sykes v. The Brockville and Ottawa Railway Co. 22 Q. B. 45'J. Payment to the 
 judgment creditor under the attaching order, but before the order to pay is not-a 
 discharge. Turner v. Jones, 1 H. & N. 878 ; Clark v. Clark, 8 U. C. L. J. 107 ; 
 but see Cooper v. Brayne, 27 L. J. Ex. 446 ; Lockwood v. Nash, 18 C. B. 536. 
 
 See Victoria Mutual Insurance Co. v. Bethune, 1 App. R. 398, as to practice 
 where orders made in respect of the same debt in different counties. 
 
 377. 
 
 12. There shall be kept by the proper officer a debt attach- 
 ment book, and in such book entries shall be made of the 
 attachment and proceedings thereon, with names, dates, and 
 statements of the amount recovered, and otherwise ; and 
 copies of any entries made therein may be taken by any person 
 upon application to the proper officer. 
 
 See Eng. R. Sup. C, O. XLV., r. 9 ; R. S. C, c. 50, s. 320. 
 
 For the form of book sanctioned by the Court under the corresponding section 
 of the Com. Law Pro. Act, R. S. O. c. 50, s. 320 ; see rules of Prac. Trin. Term, 
 1856, No. 58, sch. A, form 60. \ 
 
 23 
 

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 364 
 
 O. Xlil. 
 B. 13. 
 
 V'hMM 
 
 li> 
 
 O. Xlill. 
 
 a. 1. 
 
 i i;l 
 
 JUDICATURE ACT. 
 378. 
 
 13. The costs of any application for an attachment of debts 
 and of any proceedings arising from or incidental to such 
 application, including the examination of the debtor, shall be 
 in the discretion of the Court or a Judge. 
 
 See Eng. R. Sup. C, 0. XLV., r. 10 ; R. S. O., c. 50, s. 321. 
 This is a re-enactment of R. S. O., c. 50, s. 321. 
 " Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 ORDER XLIL 
 Writ of Possession (Lands). 
 
 379. 
 
 1. A judgment that a party do recover possession of any 
 land may be enforced by writ of possession in manner hereto- 
 fore used in actions of ejectment in the Superior Courts of 
 Common Law. 
 
 See Eng. R. Sup. C, O. XLVIII., r. 1 ; G. O. Chy. No. 294. 
 
 A somewhat similar provision is contained in O. XXXVIII., r. 3, which see. 
 
 Has the judgment to be served before a writ can issue ? See next rule. 
 
 380. 
 
 2. Where by any judgment any person therein named is 
 directed to deliver up possession of any lands to some other 
 person on, or at any specified time after, being served with the 
 judgment, the person prosecuting such judgment shall, without 
 any order for that purpose, be entitled to sue out a writ of 
 possession on filing an affidavit shewing due service of such 
 judgment and that the same has not been obeyed. 
 
 The words " on, or at any specified time after, being served with the judgment" 
 are not in the corresponding Eng. O. XLVIII., r. 2. 
 
 In Chitty's Forms (11 ed.) p. 566 (note) ''* i said that "the affidavit is only 
 necensary in cases within this rule, i.e. where the judgment directs the defendant 
 to 'deliver up possession.' The judgment on an award is in this form." In other 
 cases it is presumed the writ can issue immediately after judgment is entered. 
 
 By G. O. Chy. No. 294, it was provided that " it shall not be necessary to issue 
 a writ of attachment or injunction upon an order for delivery of possession, but the 
 party prosecuting the order, upon filing with the Clerk of Records and Writs an 
 affidavit of service of the same, and of non-compliance therewith, shall be entitled 
 without further order to a writ of assistance. The affidavit need not shew an 
 existing non-compliance, but only non-compliance with the terms and order to be 
 enforced, Webster v. Tayiar, 18 Jur. 869. 
 
 381. 
 
 3. A writ of possession shall have the effect of a writ of 
 assistance as well as of a writ of habere fcidaa posaessionem. 
 
f^;!:? 
 
 WRIT OF DELIVERY (CHATTELS). 
 
 366 
 
 ORDER XLIII. 
 Writ of Delivery (Chattels). 
 
 383. 
 
 A writ for delivery of any property other than land or »• xliii. 
 money may be issued and enforced in the manner heretofore ■** '• 
 in use in ac'/^ns of detinue in the Superior Courts of Common 
 Law. 
 
 Where an action is brought for the specific delivery of chattels, the plaintiff may, 
 upon default of appearance, have judgment for the delivery of the chattels under 
 O. IX., r. 7, and may then enforce that judgment under this Order, Ivory v. Cruik- 
 Bhank, W. N. (1875) 249. 
 
 ORDE^ XLIV. 
 Change of Parties by Death, &c. 
 
 383. 
 
 1. An action shall not become abated by reason of the mar- o. xi.iv. 
 riage, death, or bankruptcy of any of the parties, if the cause of "• *• 
 action survi/e or continue, and shall not become defective by 
 the assignment, creation, or devolution of any estate or title 
 pendente lite. 
 
 See Eng. R. Sup. C, O. 50, r. 1 ; R. S. 0., c. 50, s. 228. 
 
 " If the cause of action survive.^' — These words mean, if the cause of action sur- 
 vive to some one before the Court, Eldridge v. Burgess, L. K. 7 Ch. D. 411 ; 
 Jackson v. N. E. Ry. Co., li. R. 5 Ch. D. 844. It was therefore held that upon 
 the bankruptcy of a sole plaintiff the action could only be carried on by the trustees, 
 Jackson v. N. E. Ry. Co. ante. Where one of such trustees refuses to proceed the 
 other may do so, making his co-trustee a defendant. Ibid. But the bankruptcy of 
 some of the defendants will not cause an ab.itement where the liability of the 
 defendants was joint and several, Lloyd v. Diramack, L. R. 7 Ch. D. 398. As to 
 what actions survive, see Twycross v. Grant, L. R. 4 C. P. D, 40. 
 
 Death of tale plaintiff. — Where a sole petitioner dies after an order made on the 
 petition directing inquiries, and whilst those inquiries are pending, the Court will 
 order the petition to be continued and carried on by the representatives of the 
 petitioner, In re Atkins' estate, L. R. 1 Ch. D. 82. A sole plaintiff died insolvent, 
 and, so far as could be ascertained, intestate. On the application of the sole 
 defendant for an order appointing a person to represent the estate of the plaintiff, 
 that he the defendant might have an opportunity to move for the dismissal of the 
 action in default of due prosecution thereof, the Court made the order appointing 
 a person to represent the deceased plaintifi's estate, Wingrove v. Thompson, L. R. 
 11 Ch. D. 419. 
 
 Bankruptcy of sole plaintiff.— In Eldridge v. Burgess, L. R. 7 Ch. D. 411, after 
 issue had been joined and notice of trial given by the sole plaintiff in the action, 
 he filed a liquidation petition, under which a trustee of his property was appointed. 
 When the action came up for trial no one appeared for the plaintiff or for the 
 
856 
 
 JUDICATURE Acrr. 
 
 ) f 
 
 M ' 
 
 lii 
 
 O. Xlil V. trustee, and there was no evidence that any notice of the action had been served on 
 jl^ H, the trustee:— Held, that rule 1 of Ord. L. (One. Act O. XLIV., r. 1,) applies only 
 
 when the cause of action survives or continues in some person who is before the 
 Court ; that the action had abated, and that the only order that could be made 
 was to strike the action out of the list ; and see Jackson v. N. E. Ry. Co., L. R. 
 5 Ch. D. 844, supra. 
 
 Death or bankruptcy of sole defendant.— In a creditor's action for administration 
 aj^ainst an executrix, a decree had been made and a sunimons taken out for a 
 receiver, but i)endin>f the summons the sole defendant died. The Court, on the 
 ajjplication of the plaintiff, a[)pointed an interim receiver, whose jjowers were to 
 extend for ten days after the appointment of an administrator de bonis non, the 
 plaintiff undertaking to use all possible speed in obtaining the appointment of such 
 administrator, and to accept short notice of motion to discharge the receiver, lit- 
 re Parker, Cash v. Parker, L. R. 12 Chy. D. 21)3. 
 
 A sole defendant, by whose insolvency the suit has abated, may nevertheless 
 move to dismiss the bill for want of prosecution, Riddell v. Ritchie, 6 P. R. 205, 
 
 Death of oTie defendant. — An action was brought against three defendants, claim- 
 ing damages in respept of their alleged conspiracy and false representations. Before 
 the acti(m could come on for trial one of the defendants died. Administration was 
 taken out to his ostate. The plaintiff did not apply for an order of course to con- 
 tinue the proceedings against the administrator, but he obtained in Chambers an 
 order giving him leave to amend the writ and statement of claim by adding the 
 administrator as a defendant and by making allegations that the estate of the in- 
 testate had been benefited by reason of the matters complained of in the action. 
 The administrator was served with notice of the summons on which the order was 
 made, but did not ap))ear on the hearing, and the order was drawn up on the 
 production of an affidavit of service of the summons on him. The order as drawn 
 up was dated as of a date prior to the date of the filing of the affidavit. The writ 
 and statement of claim having been amended in pursuance of the order were 
 served on the administrator. He then entered a conditional appearance and 
 moved to discharge the order for irregularity : — Held, that tfie order had been 
 regularly n.ade under Ord. XXVII., rule 1, (Ont. O. XXIII., r. 1,) and Ord. 
 XVI., rule 13 (Ont. O. XII., r. lo). But held, that the administrator ought not 
 to have been served with the summons, and that the order must be amended 
 by striking out the afadavit of service :— Held, however, that the order must bear 
 date the day on which the affidavit was filed, Ashley r. Taylor, L. R. 10 Ch. D. 
 7t)8. Where two of five defendants, jointly and severally liable to the plaintiff, 
 had become bankrupt : -Held, that the action might proceed against the other 
 three defendants without bringing the trustees in Ijankruptcy of the two bank- 
 rupt defendants before the Court, or giving them notice of the proceedings, Lloyd 
 V. Dimmack, L. R. 7 Ch. D. 398. 
 
 A defendvnt became bankrupt after service of notice of trial, and the common 
 order of revivor was then made against his trustee, and served on him. The trus- 
 tee did not enter an appearanco ; notice was served on him that the action was re- 
 stored to the paper for trial, but he did not appear at the trial:— Held, that the 
 same was sufficient, Chorlton v. Dickie, L. R. 13 Ch. D. IGO. 
 
 Defendant dead at date of judf/ment.—l^ill and interrogatories served on defend- 
 ant E., who took no notice of them ; bill C( nsequently ordered to be taken /)ro confesso 
 against him ; judgment drawn up accordingly. Upon attempting to serve E. with 
 judgment it was found that he was dead at date of the decree, leaving no legal 
 representative ; ordered that upon filing an affidavit verifying the circumstances 
 under which the present application was made, E.'s widow be served with notice 
 that within six weeks from date of such service the Court would appoint a repre- 
 sentative and direct payment, unless in the meantime the widow appeared to 
 contest, Alforth v. Espinach, 36 L. T. N. S. 367. 
 
 Liability of new plaintiff for costs. — An order under the inodern practice, allow- 
 ing an executor to continue the proceedings in an action instituted by his testator, 
 which order has been obtained by him after a judgment in favour of his testator, 
 and after notice of an appeal against that judgment, is equivalent to the old order 
 for revivor, and subjects him to the same liabilities ; he becomes in efifect a sub- 
 stantive party to the suit, and is personally liable to costs, Boynton v. Boynton, L. 
 R. 4 App. Ca. 733. 
 
 Dismissal of action in default of revivor. — A motion hy a defendant to dismias 
 after an abatement issued by the bankruptcy of a sole plaintiff and before revivor 
 
CHANGE OF PARTIES BY DEATH, ETC. 
 
 357 
 
 205. 
 
 was refused ; his proper course being to serve the assignee of the plaintiff in insol- O. XLIF. 
 vency with notice to revive within a limited time, Cameron v. Eager, 6 P. R. 117. it. l, 
 
 A bill was filed against two executors and other persons ; one of the executors, 
 against whom charges of breach of duty were made by the bill, died ; a motion by 
 the surviving defendants, including the co-executrix of deceased defendant, to com- 
 pel the plaintiff to revive, or in default that the bU be dismissed, was refused : — 
 Held, that the proper parties to make such a>i application were the representatives 
 of deceased defendant, and that Whe surviving defendants might move to dismiss for 
 want of prosecution in the usual way, Watson r. Watson, 6 P. R. 229. 
 
 Where a plaintiff had made default in delivering his statement of claim, and had 
 since become bankrupt, notice of motion to dismiss for want of prosecution was 
 ordered to be served on the trustees in bankruptcy, although under Rules of Court 
 (1875), O. L., r. 1, (Ont. O. XLIV., r. 1,) the action had not become abated by the 
 bankruptcy, Wright v. Swindon, Marlborough and Andover Railway Company, L: 
 R. '4 Ch. D. 164. ' 
 
 Other cases. — When a suit abates between the hearing and decree, judgment 
 may be given without reviving, CoUinson v. Lister, 20 Beav. 355 ; Belsham v. 
 Percival, 8 Ha. 157 ; Bouci^ault r. Delafield, 12 W. R. 8 ; so a decree may be 
 drawn up, though the suit has abated since it was pronounced, Be.amish v. Pome- 
 roy, 1 Ch. Ch. li. 32 ; Galbraith v. Armstrong, 1 Ch. Ch. R. 33. Where the suit 
 abates after decree, any defendant who has an interest therein, may revive, on the 
 plaintiffs neglecting to do so ; but if the defendant desires not only to revive, but 
 also to get the conduct of the suit, he must serve notice of motion for the order, 
 Noble V. Stow, 30 Beav. 512. 
 
 A creditor, who in a creditor's suit has proved a claim on the estate, is consid- 
 ered a plaintiff for the purpose of reviving, English v. Hayman, 9 Ha. app. 88 ; 
 Lowes V. Lowes, 2 I). M. & G. 784 ; even though the report allowing his claim has 
 not been signed, Inchley v. Allsop, 9 W. R. 649. On the lunacy of a plaintiff, his 
 committee may revive by the common order, Dangar v. .Stewart, 9 W. R. 2ri6 ; 
 Tiinpson v. London and North -Western Railway Co., 11 W. R. 558 ; so whpre a 
 change of interest has taken place by a necessary party coining into existence dur- 
 ing the pendency of the suit, Fullarton v. Martin, ] Drew. 238 ; Phippen v. 
 Brown, 1 Jur. N, S. 698 ; Pickford v. Brown, 1 K. & J. 643 ; and see Jebb v, 
 Tugwell, 20 Beav. 461. 
 
 Where some proceedings have been taken in the suit in ignorance of the abate- 
 ment, an order can be obtained directing that future proceedings should be carried 
 on against the new iierties, see Freeman v. Pennington, 3 D. F. & .T. 296 ; and the 
 Court in such a case has jurisdiction to affirm past proceedings whei.e the new 
 parties consent, Howston v. Briscoe, 7 W. R. 394 ; Smith v. Horsfall, 24 Beav. 
 331 ; but no such order can be made except by consent, Graham v, Davis, 2 Ch. 
 Ch. R. 187. 
 
 384. 
 
 2. In case of an assignment, creation, or devolution of any 
 estate or title pendente lite, the action may be continued by or 
 against the person to or upon whom such estate or title has 
 come or devolved. 
 
 See Eng. R. Sup. C, 0. L., r. 3; G. O. Chy. No. 337; R. S. O., c. 50, s. 229. 
 
 In Daniell's Chy. Pr. (5th ed. ) p. 242, it is said :— " Incumbrancers, or purchasers 
 becoming such after'a bill has been filed and served and registered as a lis pendens, 
 will be bound by the decree, and need not be made parties to the suit, whether the 
 plaintiff have notice of them or not ; for an alienation pending a suit is void, or 
 rather voidable ; therefore, where a purchaser took exception to a title because two 
 mortgagees, who became such after the bill was filed, were no parties to the fore- 
 closure, the exception was overruled with costs ; and it has been held that where 
 one of several plaintiffs assigned all his equitable interest, pendente lite, the suit 
 might be heard as if there had been no such assignment. Where, however, a sole 
 plaintiff assigned all his equitable interest absolutely, and where .ill the adult 
 
 Elaintiffs assigned their equitable interest by way of mortgage, the assignees were 
 eld necessary parties. But in cases where a change in the ownership of the legal 
 
 ■p \^': 
 
15-' 
 
 358 
 
 i:-. 
 
 O. XlilV. 
 B.il. 
 
 •.'■...»!! iff 
 
 
 
 
 
 ill' 
 
 \l\l\ 
 
 JUDICATURE ACT. 
 
 estate takes place pending the suit, by alienation or otherwise, the new owner must 
 be br3ught before the Court in some shape or other, in order that he may execute 
 a conveyance of the le^ral estate. If a iierson takes, pendente lite, an assignment of 
 the interest of one of the parties to the suit, he may, if he pleases, make himself a 
 party to the suit by supplemental proceedings, but he cannot, by petition, pray to 
 be admitted a part as a party defendant. All that the Court will do is to make an 
 order that the assignor shall not take the property out of Court without notice." 
 
 An order was made at the trial to add as a co-defendant a person to whom the 
 defendant had assigned his interest, pendente lite, King v. Budkin, L. R. 6 Ch. 
 D.160. ^, 
 
 385. 
 
 3. Where by reason of marriage, death, or bankruptcy, or any 
 other event occurring after the commencement oi an action 
 and causing a change or transmission of interest or liability, 
 or by reason of any person interested coming into existence 
 after the commencement of the action, it becomes necessary or 
 desirable that any person not already a party to the action 
 should be made a party thereto, or that any person already a 
 party thereto should be made a party thereto in another 
 capacity, an order that the proceedings in tlie action shall be 
 carried on between the continuing parties to the action and 
 such new party, may be obtained on prcecipe, upon an allega- 
 tion of such change, or transmission of interest or liability, 
 or of such person interested having come into existence. 
 
 See Eng. R. Sup. C, O. 50, r. 4 ; R. S. O., c. 38, s. 40; Imp. Act, 15 & 16 
 Vic, c. 86, 8. 52; G. O. Chy. No. 537. 
 
 In Twycross v. Grant, 4 C. P. D. 40, an action was brought to recover from the 
 promoters of a public company the price paid by the plaintiif for shares which had 
 proved valueless, on the ground that the prospectus issued by them omitted to 
 disclose cpi caii; contracts which ought to have been specified therein. After judg- 
 ment, and pending an appeal to the House of Lords, the plaintiff died : — Held, 
 affirming the decision of the Common Pleas Division, that under Order LX., rule 
 4 (Ont. Act, 0. XLIV., r. 3), the plaintiff's interest in the action survived, and 
 was capable of transmission to his personal representatives. 
 
 For form of appearance by a party added under this rule, see Forms, No. 79. 
 
 386. 
 
 4. An order so obtained shall, unless the Court or Judge shall 
 otherwise direct, be served upon the continuing party or parties 
 to the action or their solicitors, and also upon each such new 
 party (unless the person making the application be himself 
 the only new party), and the order shall from the time of such 
 service, subject nevertheless to the next 5 following Rules 
 be binding on the persons served therewith. 
 
 See Eng. R. Sup. C, O. L., r. 6 ; G. 0. Chy. No. 338. 
 
 387. 
 
 5. Where any person who is under no disability, or under no 
 disability other than coverture, or being under any disability 
 
CHANGE OP PARTIES BY DEATH, ETC. 
 
 359 
 
 other than coverture, has a guarjdian ad litem in the action, •* J*'"^' 
 shall be served with such order, such person may apply to the ' * 
 Court or a Judge to discharge or vary such order at any time 
 within 12 days from the service thereof. 
 
 See Eng. R. Sup. C, O. L., r. 6 ; G. 0. Chy. No. 339. 
 
 " Court or a Judge."— It was held in Carr v. Moflatt, 9 U. 0. L. J. N. S. 52, that 
 an application to set aside an order of revivor should be made to tlie Court and not 
 in Cnambers, and Nicholson v. Peile, 2 Beav. 497, was not followed. 
 
 "To discharge or vary such order."- The order being obtained ex parte is liable 
 to be objected to by any parties to the suit, Jackson v. Ward, 1 Giff. ;^0 ; and if 
 obtained on a false statement of facts will be discharged, Brignall v. Whitehead, 30 
 Beav. 229. 
 
 The defendants though aware that A. had no interest in the matters in question, 
 made him a party plaintiff, by order of revivor obtained on prcecipe. A. was then 
 and for some time afterwards under the belief that he had been made a party prop- 
 erly ; and even after he found out that he had been made a party improperly he 
 did not apply to have the order of revivor set aside as against him, till he found 
 that he was prejudiced by it. He then petitioned to have the order set aside as 
 against him ; and the Court granted the application, on the terms of his paying 
 the costs of the petition, and any costs that had been incurred by his having been 
 made a party, Smith v. Gunn, 2 Ch. Gh. R. 230. 
 
 An order of revivor was obtained in the cause on the ground that the sole 
 plaintiff had assigned all his interest, etc., to one Close. The plaintiff applied to 
 the Court by petition to set aside the order, disputing the assignment on the 
 allegation of which the order was obtained. Proudfoot, v. C, discharged the order 
 of revivor with costs, Fisken v. Ince et al., 8 P. R. 147. 
 
 Title of action. — It is not necessary to add to the title of an action the name of 
 a person who, under O. XLIV., r. 2, has been substituted as plaintiff in that action, 
 Seear v. Lawson, 29 W. R. 45. 
 
 " Within 12 days." — The application must be made and not merely the notice 
 of motion served within the time limited, Harris v. Meyers, 16 Gr. 117 ; Mcllroy 
 V. Hawke, 3 Ch. Ch. R. 66 : and see Fox v. Wallis, L. R. 2 C. P. D. 45 ; Jackson 
 V. Gardner, 15 Gr. 423. 
 
 As to computation of time, see notes to 0. LII. 
 
 388. 
 
 6. Upon every copy of such order served, there shall be in- 
 dorsed a memorandum in the form or to the effect set forth in 
 Form 20 in Appendix (B) hereto. 
 
 See G. O. Chy. No. 341. 
 
 389. 
 
 7. Where any person being under any disability other than 
 coverture, and not having had a guardian ad litem appointed 
 in the action, is served with any such order, such person may 
 applj" to the Court or a Judge to discharge or vary such order, 
 at any time within 12 days from the appointment of a 
 guardian ad litem for such party, and until such period of 12 
 days shall have expired such order shall have no force or effect 
 as against such last mentioned person. 
 
 See Eng. R. Sup. C, O. L., r. 7 ; G. 0. Chy. No. 340. 
 '• Court or a Judge."— 8ee notes to rule 5 of this Order. 
 " IFttAtn if (2ay«."— See notes to rule 6 of this Order. 
 
360 
 
 JUDICATURE ACT. 
 
 'r. 
 
 O. XlilV. 
 
 B. ». 
 
 IM 
 
 '|I».N 
 
 O. XliF. 
 B. 1. 
 
 I'' : 
 
 IL 
 
 390. 
 
 8. Where the order is served out of Ontario, the party 
 served is to have the same time to apply to discharge the order, 
 as a defendant has to appear to a writ of summons so served ; 
 but an application may be mude for shortening the time. 
 
 See G. O. Chy. No. 342. 
 
 The time for appearance of persons served out of the jurisdiction is regulated 
 by 0. VII.. r. 2, 
 
 391. 
 
 9. Where the Court or a Judge authorizes publication instead 
 of service, the Court or Judge is at the same time to appoint 
 such time for applying to discharge the order 'as seems 
 proper. 
 
 See G. 0, Chy. No. 343. 
 
 ORDER XLV. 
 Transfers 'AND Consolidation of Actions. 
 
 392. 
 
 1. Actions may be transferred from one Division of the 
 High Court to another Division by order of the Presidents 
 of such Divisions. 
 
 Under the English rule (O. LT., r. 2) an order may be made by "the Court or 
 any Judge of the division to which the action is assigned," but the consent of the 
 President of the Court to which it is proposed to assign the action had to be 
 obtained. Under the present rule, if taken literally, the Presidents of both Courts 
 have to make the order. 
 
 393. 
 
 2. The Presidents of the Queen's Bench, Chancery and Com- 
 mon Pleas Divisions shall, from time to time as occasion may 
 require, meet together and exam-ne the list of motions, rules 
 and other matters set down for argument in each Divisional 
 Court of the High Court, and direct the transfer of such and 
 BO many of the said motions, rules and other matters from one 
 Divisional Court to another as shall, as nearly as possible in 
 their judgment, equalize the amount of business to be done by 
 the said Courts. 
 
 See 41 Vic. (Ont.), c. 8, s. 4. 
 
 394. 
 
 3. Where an order has been made for the administration of 
 the assets of any testator or intestate, a Judge of any Division 
 shall have power, without any further consent, to order the 
 
TTI^ 
 
 TRANSFERS AND CONSOLIDATION. 
 
 361 
 
 %8 seems 
 
 transfer to such Division of any action pending in any other *•• '^*^^- 
 Division by or against the executors or administrators of the "* *" 
 testator or intestate whose assets are being so administered. 
 
 See Eng. R. Sup, C, June. 1870, r. 18. 
 
 395. 
 
 4. Actions in any Division or Divisions may be consolidated 
 by order of the Court or a Judge in the manner heretofore in 
 use in the Superior Courts of Common Law. 
 
 See Eng. R. Sup. C, 0. LI., r. 4. 
 
 The term " consolidation of actions " is used in two senses. First, if a plaintiff 
 brings two actions against the same defendants fur matters which might have been 
 combined in one, and the double proceeding appears to be vexatious, the Court 
 may, in the exercise of its ordinary power to prevent any abuse of its own process, 
 consolidate the actions ; that is, it will stay proceedings absolutely in one action, 
 and require the plaintiff to include the whole of his claims in the other: and this 
 has been done with costs against the plaintiff, see Cecil v. Brigges, 2 T. 11. (i39 ; 
 Anon. 1 Chitty, 709 (a) ; Beardsall v. Chetham, E. B. & E. 248. But the terra 
 consolidation is more frequently used in a different sense. Where action s are brought 
 by the same plaintiff against different defendants, but the questions in dispute in 
 all are substantially the same, the Court will, on the application of the defendants, 
 stay proceedings in all the actions except one, until that one action has been 
 determined, upon the terms that the various defendants agree to be bound by the 
 event of the action which proceeds. This practice was first introduced by Lord 
 Mansfield, in the case of actions against the several underwriters upon policies of in- 
 surance ; but it lias since been applied to many other cases, as in the case of separate 
 guarantees by different instruments of separate parts of a debt, Sharp v. Lethbridge, 
 
 4 M. & G. 37 ; joint and several obligors of a bond conditioned for the good be- 
 haviour of another person, Anderson v, Towgood, 1 Q. B. 245 ; principal and 
 sureties on a replevin bond, Bartlett v. Bartlett, 4 Scott, N. K. 779 ; the several 
 members liable upon a mutual insurance policy, Lewis v. Barkes, 4 C. B. N. S. 
 330. So where a number of actions against different defendants may be reduced 
 to classes, those of each class raising the same questions, the Court may allow one 
 action of each class to proceed, and stay the rest, S^ers v. Pickersgill, 27 L. J. Ex. 
 
 5 ; and see Smith v. Whichcord, 24 W. R. 900. 
 
 The order is made on the application of the defendant, and'without the necessity 
 of any consent on the plaintiff's part, Hollingsworth v. Brodrick, 4. A. & E. 646. 
 It binds the defendants in the actions which are stayed to abide the event of the 
 one which proceeds ; but it does not bind the plaintiff to do so ; and if the result of 
 the first action is against him, he may proceed with another, Doyle v. Anderson, 
 1 A. & E. 635 ; Doyle t>. Douglas, 4 B. & Ad. 544. A ccnsolidation order may be 
 obtained at any time after service of the writ, Hollingsworth v. Brodrick, 4 A. & 
 £. 646. 
 
 The Court may re-open the consolidation order and allow a second action to be 
 defended, notwithstanding that the plaintiff succeeded in the first action. But 
 it will require a very strong ca^e to induce it to do so ; probably a case as strong , 
 
 as would be required to procure a new trial, see Foster v. Alvez, 3 Bing. N. C. 896. 
 
 One of a number of actions brought by different plaintiffs against the same defen- 
 dants in respect of an alleged misrepresentation in the prospectus of a company, 
 was ordered to be a test action, the trial of which was to bind all the plaintiffs, but not 
 to bind the defendants ; when the test action came on the plaintiff did not appear, 
 and judgment was given for the defendants : — Held, that though t he order contained 
 no express provision to that effect, the Court had power to substitute another of 
 the actions as the test action, and that as the trial of the original test action had 
 failed to be a real trial of the issue between the plaintiffs and the defendants, with- 
 out any fault of the other plaintiffs, this substitution ought to be made, Amos v, 
 Chadwick, L. E. 9 Ch. D. 459. In the absence of agreement the plaintiff in an 
 action constituted a test action, has no right to be indemnified against costs by the 
 other plaintiffs, lb. 
 
 i I'll 
 
862 
 
 JUDICATURE ACT. 
 
 ORD^R XLVL 
 
 'It 
 
 
 iiiid^j.j I'll, 
 
 O. XEiVl. 
 B.1. 
 
 Interlocutory Orders as to Mandamus, Injunctions, ob 
 Interim Preservation op Property, &c. 
 
 396. 
 
 1. Where by any contract a prima facie case of liability is 
 established, and there is alleged as matter of defence a right 
 to be relieved wholly or partially from such liability, the Court 
 or a Judge may make an order for the preservation or interim 
 custody of the subject-matter of the litigation, or may order 
 that the amount in dispute be brought into Court or otherwise 
 secured. 
 
 See Eng. R. Sup. C, O. LIL, r. 1. 
 
 " Ettablished." — The meaning of the word "established" seems to be admitted 
 on the pleadings if there are pleadings, or shewn to the satisfaction of the Court or 
 Judge if there are no pleadings. See rule 5. 
 
 " Court or a Judge."— See notes to O. IV., r. 1 (a). 
 
 397. 
 
 2. It shall be lawful for the Court or a J"dge, on the appli- 
 cation of any party to an action, to make any order for the 
 sale, by any peraon or persons named in such order, and in such 
 manner and on such terms as to the Court or Judge may seem 
 desirable, of any goods, wares, or merchandise which may be of 
 a perishable nature or likely to injure from keeping, or which 
 for any other just and sufficient reason it may be desirable to 
 have sold at once. 
 
 See Eng. R. Sup. C, O. LII., r. 1. 
 
 " Court or a Judge."— See notes to O. IV., r. 1 (o). 
 
 "Sale." — An order in an action may be made for the sale of a horse, which for 
 a ''just and suiBcient reason it may be desirable to have sold at once," Bartholomew 
 V. Freeman, L. R. 3 C. P. D. 316. In this case the ownership of the horse was in 
 dispute. The application was for the purpose of saving the expense of keeping 
 it pending the litigation. An order for the sale was made. 
 
 398. 
 
 
 
 3. It shall be lawful for the Court or a Judge, upon the 
 application of any part}^ to an action, and upon such terms as 
 may seem just, to make any order for the detention, preserva- 
 tion, or inspection of any property, being the subject of such 
 action; and for all or any of the purposes aforesaid to authorize 
 any person or persons to enter upon or into any land or build- 
 ing in the possession of any party to such action; and for all or 
 
MANDAMUS, INJUNCTIONS, ETC. 
 
 363 
 
 any of the purposes aforesaid to authorize any samples to be ®- 
 taken, or any observation to be made or experiment to be tried, *• *• 
 which may seem necessary or expedient for the purpose of 
 obtaining full information or evidence. 
 
 See Eng. R. Sup. C, O. LII., r. 3. 
 
 " Court or a Judge."— See notes to O. IV., r. 1 (o). 
 
 " Preservation."— Under this rule the Court has jurisdiction in a proper case to 
 grant an interim injunction to restrain a defendant from ceasing to pump water 
 out of a mine, Strelley t>. Pearson, L. K. 13 Gh. D. 113. 
 
 In a suit instituted for the purpose of setting aside a contract for the purchase 
 of a colliery on the ground of fraud and misrepresentation, the plaintiffs being the 
 purchasers in possesoion :— Held, considerini.' the nature of the property, it was for 
 the benefit of all parties that pending the litit^ation a receiver and manager should 
 be appointed, Gibbs v. David, 44 L. J. Ch. 770. 
 
 In an action for the return of jewelry which A. 6., as the agent of the plain- 
 tiffs had left with the defendants, but which the defent^ants claimed to hold against 
 a debt due to them by the said A. B., who had, as they alleged, cleposited it with 
 them as his jewelry and not as the plaintiff's, the Court made an order under Order 
 LII., rule 3 (Ont. O. XLVI., r. 3), for the delivery up of such jewelry to an offi- 
 cei of the Court to abide the event of the action, Velati v. Braham, 46 L. J. Com. 
 Law, 416. 
 
 In an action to enforce specific performance of a parol agreement to execute a 
 bill of sale of personal chattels upon an ex parte motion, before appearance of the 
 defendant, there being evidence of immediate danger of the chattels in question 
 being disposed of, an order was made appointing the plaintift (without security) 
 interim receiver for fourteen days, or until a receiver should be appointed under a 
 reference to Chambers for that purpose, which the Vice-Chancellor had directed. 
 The plaintiff undertook to deal with the property only under the direction of the 
 Court, and to abide bv any order which the Court might make as to damages or 
 otherwise, Taylor v. Eckersly, L. R. 2 Ch. D. 302. 
 
 Upon such terms as may seem just. — An injunction to restrain a landlord from 
 exercising the legal right of distress, will be granted only " upon such terms and 
 conditions as the Court shall think just," (see sec. 17 of the Act, sub-s. 8). The 
 terms and conditions which the Court thought just and imposed on tenants, who 
 sought to restrain their landlord from distraining for certain rent until the 
 determination of an action brought by them against him to try his right to the 
 rent, were that an injunction should be granted for a fortnight, and continued 
 only, if the rent was paid into Court, Shaw v. Earl of Jersey, L. R. 4 C. P. D. 120, 
 359. 
 
 399. 
 
 4. An application for an order under section 17, sub- 
 section 8, of the Act, or under Rules 2 or 3 of this Order, 
 may be made to the Court or a Judge by any party. If the 
 application be by the plaintiff for an order under the said 
 sub-section 8, it may be made either ex parte or on 
 notice, and if for an order under the said Rules 2 or 3 of this 
 Order, it may be made, after notice to the defendant, at any 
 time after the issue of the writ of summons, and if it be by 
 any other party, then on notice to the plaintiff, and at any 
 time after appearance, by the party making the application. 
 
 See Eng. R. Sup. C, O. LIL, r. 4. ; 
 
 " Court or a Judge."— See notes to 0. IV., r. 1 (o). 
 
 XLVI. 
 
 f 
 
 
 
364 
 
 JUDICATURE ACT. 
 
 O. XIiVI. Any party.— A. defendant in an action may, before judgment, apply for an in- 
 
 K. 4. junction and a receiver. The defendant may do so notwithstanding that the plain- 
 
 tiff has already served a notice of motion for the like purpose ; and in such case one 
 order will be made on the two motions, but the conduct of the proceedings will in 
 general be given to the plaintiff, Sargant v. Read, L. R. 1 Ch. D. 600. 
 
 Ex parte.— this rule authorises the making of an order on the application of the 
 plaintiff either ex parte or on notice. It will not in general be made ex parte, but 
 in a case of emergency it will, Melnish v. Milton. 24 \V. R. 679. 
 
 Where a defendant has had notice of motion for an injunction, it is improper to 
 grant an injunction against him ex parte, though the pressure of business may be 
 Buch as to prevent the motion on notice from being brought on, Graham v. Camp- 
 bell, L. R. 7 Ch. D. 491 ; see Hennesy v. Bohmann, W. N. (1877) 14, Thorley's 
 Cattle food Co, v. Massam, L. R. 6 Ch. D. 682. 
 
 400. 
 
 5. An application for an order under Rule 1 may be made 
 by the plaintiff at any time after his right thereto appears 
 from the pleadings, or, if there be no pleadings, is made to 
 appear by affidavit or otherwise to the satisfaction of the Court 
 or a Judge. 
 
 See Eng. R. Sup, C, O. LIL, r. 5. 
 
 401, 
 
 G. No writ of injunction shall be issued in any case. An 
 injunction shall be by a judgment or order, and any such 
 judgment or order shall have the effect which a writ of injunc- 
 tion now has. 
 
 i 
 
 
 
 ::i :;'; 
 
 M , !;: 
 
 See Eng. R. Sup. C, 1880, r. 32. 
 
 403. 
 
 7. Where an action is brought to recover, or a defendant in his 
 statement of defence seeks by way of counter-claim to recover, 
 specific property other than land, and the party from whom 
 such recovery is sought does not dispute the title of the party 
 seeking to recover the same, but claims to retain the property 
 by virtue of a lien or otherwise as security for any sum 
 of money, the Court or a Judge, at any time after such 
 last mentioned claim appears from the pleadings, or, if there 
 be no pleadings, by affidavit or otherwise to the satisfaction 
 of such Court or Judge, may order that the party claiming to 
 recover the property be at liberty to pay into Court, to abide 
 the event of the action, the amount of money in respect of 
 which the lien or security is claimed, and such further sum (if 
 any) for interest and costs as such Court or Judge may direct, 
 and that upon such payment into Court being made, the 
 property claimed be given up to the party claiming it. 
 
 See Eng. R. Sup. C, O. LIL, r. 6. 
 
 " Court w a Judi^e."— See notes to O, IV,, r. 1 (o). 
 

 MOTIONS, ETC. 
 
 An injunction operated from the date of the order, Rattray v. Bishop, 3 Mad. 
 220 ; and in pressing cases the plaintiff might before the order had been drawn up, 
 give the defendant notice of the fact that it had been obtained, and if there was no 
 delay in getting the order drawn up, and the writ sealed auJ served, the defendant 
 might be committed for a breach after such notice, Vansandau v. Rose, 2 J. & W. 
 204 ; Kimpton v. Eve, 2 V. & B. 349 ; Lewes v. Morgan, 5 Price, 518. The copy 
 of an injunction must be personally served, Ellerton v. Thirsk, 1 J. & W. 376, 
 
 365 
 
 O. XliFI. 
 
 K. 7. 
 
 403. 
 
 8. Where the trusts of any will or settlement are being 
 administered, and a sale is ordered of any property ve,sted 
 in the trustees of such will or settlement upon trust for sale 
 or with power of sale by such trustees, the conduct of such 
 sale shall be given to such trustees, unless the Judge shall 
 otherwise direct. 
 
 See Eng. R. Sup. C, March, 1879, r. 7. 
 
 ORDER XLVII. 
 Motions and other Applications. 
 
 Z 
 
 8 
 
 404. 
 
 1. Where by these Rules any application is authorized to be <». xl.vii. 
 made to the Court or a Judge in an action, such application »• '• 
 shall be made by motion. 
 
 See Eng. R. Sup. C, O. LIIL, r. 1. 
 
 "Court 01' a Judge." — See notes to O. IV., r. 1 (a). 
 
 '^ By motion." — There could be no doubt that these words were used as contra- 
 distinguished from Summons or Rule Nisi, and that a notice of motion should be 
 given, were it not for the use of the same words in O. XXXV., r. 2, where from 
 tne context it is apparent th.it a Rule Nisi is to be applied for. The practice in 
 England, however, under a similar rule is to apply upon notice of motion, and this 
 to' "ther with the argument to be deduced from the form of notice of motion given 
 (Si Forms, No. 10), renders it reasonably clear that such notice should be sifiven. 
 
 Where notice had been given of a motion before the Court to rescind a Judge's 
 order, and the parties giving the notice did not appear, the Court ordered thein to 
 pay the costs of the other party appearing to shew caude against the motion. Berry 
 V. The Exchange Trading Company, L. R. 1 Q. B. D. 77. On the iOth of Decem- 
 ber, 1875, the plaintiff served on the defendants a notice that the Court would bo 
 moved on the 22nd, or as soon after as counsel could be heard, to reinstate for 
 argument a demurrer in which judgment had been given for the defendants in the 
 absence of the plaintiff. On the 11th and 12th of January, 1876, the defendants 
 appeared in Court by their counsel to oppose the motion, but no one appeared for 
 the plaintiff :.— Held, that the notice was bad on two grounds : 1, because under the 
 Judicature Act, 18r.5, Sch. Order LXL, rule 1, the Michaelmas sittings terminate 
 on the 21 st December ; and 2, because there were not two clear days between the 
 20th and 22nd, as required by Order LIIL, rule 4, (Ont. O. XLVIL, r. 4,) ; and 
 that the defendants therefore were not bound to appear, and were not entitled to 
 their cost of doing so, Daubney v. Shuttleworth, L. R. 1 Ex. D. 53. 
 Chamber applicatiom.— Sao 0. XL VIII., r. 1 ; 0. XLIX., r. 11. 
 
 i 
 
366 
 
 JUDICATURE ACT. 
 
 O. XliFII. 
 B. 3. 
 
 405. 
 
 2. No rule or order to shew cause shall be granted in any 
 action or matter, except in the cases in which an application for 
 such rule or order is expressly authorized by these Rules. 
 
 See Eng. R, Sup. 0., O. LIII., r. 2. 
 
 " Except in the cctses." — A motion for a new trial under Q. XXXV., r. 2, is an 
 exception. 
 
 "/» any action." — This rule differs from the corresponding English rule, in 
 which the words "or matter " do not occur. That rule was held to apply only to 
 rules or orders made in action and not to such a proceeding as an application to 
 enforce or set aside an award, re Phillips and Grill, L. R. 1 Q. B. D. 78 ; Robinson 
 V. Robinson, 24 W. R. 675. 
 
 406. 
 
 HHi; 
 
 o 
 
 •i , 
 
 M 
 
 IK'. 
 
 (.'*' 
 
 ). Except where (by the practice existing at the time of the 
 passing ot the said Act) any order or rule has heretofore been 
 made ex parte absolute in the first instance, and except where 
 by these Rules it is otherwise provided, and except where the 
 motion is for a rule or summons to shew cause only — no 
 motion shall be made without previous notice to the parties 
 affected thereby. But the Court or Judge, if satisfied that the 
 delay caused by proceeding in the ordinary way would or might 
 entail irreparable or serious mischief, may make any order ex 
 parte, upon such terras as to costs or otherwise, and subject to 
 such undertaking, if any, as the Court or Judge may think 
 just ; and any party affected by such order may move to set 
 aside or vary the same. 
 
 See Eng. R. Sup. 0., 0. LIIL, r. 3. 
 
 " Practice existing." — Under the English practice, prior to the Judicature A.cts, a 
 notice of motion could be served either on the party personally or at his residence, 
 Con. Ord. III., r. 6 ; and it was accordingly held, under the present rule, that a notice 
 of motion might still be served by leaving it at the residence, re a Solicitor, L. R. 
 14 Ch. D. 152 ; but see Mann v. Perry, W. N. (1881) 4. There was not, however, 
 in Ontario any similar practice. 
 
 Orders granted as of course, should be served as soon as possible. Church v. 
 Marsh, 2 Ha. 632. 
 
 If a defendant is absconding, notice may be given by posting it up in the office 
 from which the writ of summons issued, Ord. XV., r. 7; see Dymonds v. Croft, 
 24 W. R. 700 ; Morton v. MiUer, 24 W. R. 723. 
 
 407. 
 
 4. Unless the Court or Judge give special leave to the con- 
 trary, there must be at least 2 clear days between the service 
 of a notice of motion and the day named in the. notice for 
 hearing the motion. 
 
 See Eng. R. Sup. C, O. LIU., r. 4. 
 
 " Court or a Judge." — See notes to O. IV., r. 1 (a). 
 
 " t clear days."— As to computation of time, see O. LII. 
 
MOTIONS, ETC. 
 
 367 
 
 408. 
 
 5. If on the hearing of a motion or other application, the •• ^^'Vii, 
 
 Court or Judge shall be of opinion that any person to whom ' " 
 notice has not been given ought to have had such notice, the 
 Court or Judge may either dismiss the motion or application, 
 or adjourn the hearing thereof in order that such notice may 
 be given, upon such terms, if any, as the Court or Judge may 
 think fit to impose. 
 
 See Eng. R. Sup. 0., 0. LIII., r. 5. 
 
 409. 
 
 6. The hearing of any motion or application may from time 
 to time be adjourned upon such terms, if any, as the Court or 
 Judge shall think fit. 
 
 See Eng. R. Sup. C, O. LIII., r. 6. 
 
 410. 
 
 7. The plaintifi" shall, without any special leave, be at liberty 
 to serve any notice of motion or other notice, or any petition 
 or summons upon any defendant, who, having been duly served 
 with a writ of summons to appear in the action, has not ap- 
 peared within the time limited for that purpose. 
 
 See Eng. R. Sup. C, O. LIII., r. 7. 
 
 "Has not appeared within the time limited. " — Formerly a plaintiff might, without 
 any leave, serve a notice of motion at the same time that he served the bill. Under 
 the present rule, it is probable that this right is taken away, except in the case of 
 an injunction under the next rule, and that until the time for appearance has ex- 
 pired a notice of motion can only be served after leave granted. 
 
 z 
 
 3 
 
 ■s 
 
 
 
 5 
 
 ble. Church v. 
 
 411. 
 
 8. The plaintiff may also, without any special leave, serve a 
 notice of motion for an injunction, and may, by leave of the 
 Court or a Judge to be obtained ex parte, serve any other notice 
 of motion, upon any defendant along with the writ of sum- 
 mons, or at any time after service of the writ of summons and 
 before the time limited for the appearance of such defendant 
 
 See Eng. R. Sui. C, O. LIII., r. 8. 
 
 The leave, which may be obtained ex parte, must be stated in the notice of mo- 
 tion, Hill V. Rimell, 2 M. & C. 641. The respondent should not appear if the notice 
 is invalid, Daubney v. Shuttleworth, L. R. 1 Ex. D. 63. 
 
868 
 
 JUDICATURE ACT. 
 
 m .■' 
 
 o. xiiriii. 
 
 B. 1. 
 
 ORDER XLVIII. 
 Applications at Chambers. 
 
 412. 
 
 1. Every application at chambers in Toronto authorized by 
 these Rules and not made ex parte shall be made in a summary 
 way, on notice instead of by summons. 
 
 In EnRland all applications in Chambers are made "in a summary way by 
 summons," Enpf. R. Sup C, O. LIV., r. 1. In Ontario applications at Chambers 
 are to be by notice of motion in Toronto, and by summons elsewhere, O. XLIX., 
 r. 11. 
 
 See notes to O. IV. , r. 1 (a) ; and 0. XLIX., r, 6 (a), as to what applications can 
 be made at Chambers. 
 
 The officer presiding in Chambers will be styled the Master in Chambers, O. 
 XLIX., r. 6. 
 
 For form of notice of motion returnable in Chambers, see Forms, No. 11. 
 
 For form of order, see Forms, No. 109; and for form of order dismissing a 
 motion, see Forms, No. 146. 
 
 It will be observed that the new practice follows the Chancery form of order — 
 using the impersonal — "It is ordered," and not the Common Law form, " Ido order." 
 
 413. 
 
 2. An order shall be in the Form No. 109 in Appendix (H) 
 hereto, with such variations as circumstances require. It shall 
 be marked with the name of the Judge or officer by whom it 
 is made. . ' 
 
 See Eng. R. Sup. C, April, 1880, r. 39. 
 
 "Marked with the name." — The name is placed after the name of the Division 
 and before the style of cause ; see the Forms, 
 
 414. 
 
 3. Every appeal to the Court from any decision at chambers 
 shall be by motion, and .shall be made within 8 days after the 
 decision appealed against, or if no Court to which such 
 appeal can be made shall sit within such 8 days, then on 
 the first day on which any such Court may be sitting after 
 the expiration of such 8 days. 
 
 See Eng. R. Sup. C, O. LIV., r. 6, as amended by R. Sup. C, March 1879. r. 8. 
 
 This rule seems to apply to appeals from any decision at Chambers of a Judge : 
 appeals from a County Judge, Master in Chambers, or local Master, are providecl 
 for afterwards, Ord. XLIX., r. I'.i. By this rule the motion must be made within 
 the eight days ; it is nut enough that notice of motion be given within that time, 
 Fox V. Wallis, L. R, 2 C. P. D. 4o ; and see Jackson v. Gardner, 15 Gr. 425 ; 
 Harris v. Meyers, 16 Gr. 117 ; Mcllroy v. Hawke, 3 Ch. Ch. R. 66. If the eighth 
 day is a Sunday then, under Ord. LIl., r. 4, the motion may be made on Monday, 
 Taylor v. Jones. 45 L. J. N. S. G. P. 110. 
 
*a 
 
 OFFICERS AND OFFICES, 
 
 369 
 
 ORDER XLTX. 
 Officers and Offices. 
 
 415. 
 
 1. All officers shall be auxiliary to one another for promo- o. xlix. 
 ting the correct, convenient, and speedy administration of busi- «• >• 
 
 ness. 
 
 416. 
 
 2. Two of the officers of the Hisfh Court shall, in addition 
 to their other duties, be judsrment clerks of the High Court, 
 for the purpose of settling the form and terms of such special 
 judgments as may be referred to them for that purpose by any 
 Divisional Court, or a Judge of any Division, or by the Master 
 in Chambers. 
 
 '^Judgment clerks." — The Registrars of the Court of Chancery have heretofore 
 discharged the duties now imposed upon the judgment clerks. As to practice upon 
 settling forms of decrees, see notes to O. XXKVII., r. 1. 
 
 417. 
 
 3. Where the offices of Deputy Clerk of the Crown and 
 Deputy Registrar in any county are not held by the same per- 
 son, the Deputy Clerk of the Crown shall in actions in the 
 Queen's Bench and Common Pleas Divisions have the powers 
 and duties of a Deputy Re;j;istrar (not local Master), in addition 
 to the powers and duties heretofore belonging to a Deputy Clerk 
 of the Crown ; and the Deputy Registrar shall in actions in the 
 Chancery Division have the powers and duties of a Deputy 
 Clerk of the Crown, in addition to the powers and duties here- 
 tofoje belonging to a Deputy Registrar. Where the two offices 
 are united in the same person he shall be styled Local Registrar 
 of the High Court; and every reference in these Orders to the 
 said two offices, or either of them, shall be deemed to apply to 
 the Local Registrar. 
 
 See G. O. Chy. Nos. 33, 34, 35, 37, 38, 39, 73, etc. 
 
 Deputy Registrars performed the duties of their offices in the same manner, and 
 under the same regulations, as the like duties were performed by the Clerk of 
 Records and Writs ; and all orders, rules and regulations in force respecting the 
 Clerk of Records and Writs, and respecting the regulation of his office were in force 
 and applicable to the Deputy Registrars, in relation to such duties as they were 
 required to perform ; and the like sums and fees payable to the Cleik of Records 
 and Writs were payable to Deputy Registrars in relation to similar matters, G. 
 O, Chjr. No. M. The duties performed by the Clerk of Records and Writs were the 
 receiving, filing and custody of pleadings, reports, depositions, affidavits, and other 
 papers and proceedings, and making entries thereof in the proper books ; amending 
 
 24 
 
370 
 
 JUDICATURE ACT. 
 
 § i 
 
 ' ! 
 
 O. X lilX. bills, entering consents, and notes pro confetxo, setting down causes, certifying pro- 
 B, 3, ceedings, examining and authenticating office copies of pleadings and other pro- 
 
 ceedings, preparing and issning writs, commissions and orders of course, attend- 
 ing on the opening of commissions, attending with records and exhibits on the 
 Judges of the Court or elsewhere, G. O. Chy. No. 2'i, All orders diawn up by 
 tije Clerk of Records and Writs without the special direction of the Court, were, 
 ' e the bill was filed in the office of a Deputy Registrar, to be drawn up by the 
 • _ ..y Registrar, G. O. Chy. Nos. 37 & 595. Every Deputy Registrar had 
 :<?v' 'n his office a book to be called " The Solicitors' and Agents' Book, " G. 0. 
 . ,, . A^^> o. 33 ; and could issue decrees on prwcipe for foreclosure, sale or redemption, 
 G. O. Ch^ . Nos. 38, C48. A bill of complaint might be filed either with the Clerk 
 of Records and Writs or with a Deputy Registrar, at the option of the plaintifif, 
 U. O. Chy. Nr 77. Certificates of Chancery proceedings for registration may be 
 sigi.^ " 'ly a,.^ ;^>jputy Registrar ; see R. S. O., c.40, s. 89, and c. Ill, s. 49. 
 
 I 
 
 '* 
 
 i .rl .- ■ ^ 
 
 418. 
 
 4. Subject to the foregoing Orders, where an action is 
 commenced in the oflBce of a Deputy Registrar or Deputy 
 Clerk of the Crown or Local Registrar, all such orders in the 
 action as require to be entered (except orders made by the 
 County Court Judge or the local Master of the county under the 
 authority and jurisdiction vested in them under these Rules) 
 shall be entered at Toronto ; and, where necessary, an office 
 copy of the order so entered shall be transmitted or delivered 
 to the Deputy Registrar, Deputy Clerk of the Crown or Local 
 Registrar to be filed with the proceedings in the action. 
 
 See Eng. R. Sup. C, 0. XXXV., r. 2. 
 
 As to the powers of a County Judge and Local Master, see rule 8 of this Order 
 and sec. 64 of the Act. 
 
 419. 
 
 5. Sections 302 and 303 of the Common Law Procedure Act 
 and section 7 of the "Execution Act" shall apply as neavly as 
 may be to Deputy Registrars as well as Deputy Clerks of the 
 Crown. 
 
 See Eng. R. Sup. C, O. XXXV., r. 3. 
 
 The sections of the Com. Law Pro. Act, R. S. O., c 50, are as follows : — Sec. 
 302. "Every Deputy Clerk of the Crown and Pleas and every County Court Clerk 
 shall keep a regular Dook, in which shall be minuted and docketed all judgments 
 entered by sucn Deputy Clerk or County Court Clerk, and such minutes shall 
 contain, (t) The name of every plaintiff and defendant ; (2) The date of the issue 
 of the first process ; (3) The date of the entry of judgment ; (4) The form of action 
 and the amount recovered, exclusive of costs ; (5) The amount of costs taxed ; and 
 (6) Whether such judgment has been entered on verdict, default, confession, non 
 pros, non-suit, discontinuance, or how otherwise." Sec. 303. "Within three 
 months after the entry of each judgment by a Deputy Clerk of the Crown, he shall 
 transmit to the principal Clerk of the proper Court in Toronto every such iudgment- 
 roll and all papers of, or belonging thereto, and such judgments shall be also 
 docketed in the principal office ; and in case, in any of the Courts, the original 
 judgment-roll happens to be lost or destroyed, so that no exemplification or 
 examined copy thereof can be procured, a copy of the entry in any of such docket 
 books, certified by the Clerk or Deputy Clerk of the Crown, or by the Clerk of the 
 County Court having such book m his custody, shall be evidence of aJl matters 
 therein set forth and expressed." 
 
OFFICERS AND OFFICES. 
 
 371 
 
 The sec. of "The Execution Act," R. S. 0., c. 66, is as follows :— Sec. 7. "All O. XLIX.. 
 writs of execution may issue from the offices wherein the judgment has been r. a. 
 entered ; and in the Superior Courts of Law, after the transmission of the judgment- 
 roll to the principal office, such writs may, at the option of the party entitled 
 thereto, be issued out of such principal office." 
 
 430. 
 
 6. There shall be an officer of the Supreme Court to be 
 named the Master in Chambers, who, in regard to all actions 
 and matters in the High Court, shall have the power, authority 
 and jurisdiction heretofore in like cases possessed in the 
 Superior Courts respectively, by the Clerk of the Crown and 
 Pleas of the Court of Queen's Bench and by the Referee in 
 Chambers of the Court of Chancery ; 
 
 (a) The said officer shall not have authority or jurisdiction in 
 respect of the matters excepted in regard to the Clerk of the 
 Crown and Pleas of the Queen's Bunch by the Rules of the 
 Judges of the Courts of Queen's Bench and Common Pleas oi 
 Hilary Term, 1870, or in respect of the matters excepted in 
 regard to the Referee by the oGOth of the orders of the Court 
 of Chancery, or in respect of appeals from Judges of County 
 Courts or Local Masters, or in respect of any other matter 
 which by these orders is expres&ly required to be done by a 
 Judge of the High Court. 
 
 See Eng. R. Sup. C, O. LIV., r. 2. 
 
 "Clerk of the Crmon and Pleas of the Court of Queen's Bench." — The power, 
 authority and jurisdiction of the Clerk of the Crown and Pleas of the Court of 
 Queen's Bench to transact business in Chambers is governed by 33 Vic, c. 11, s. 5 
 <now R. S. O., c. 39, s. 29), which empowers the Judges of the Superior Courts of 
 Law to make general rules, "For empowering the Clerk of the Crown and Pleas of 
 the Court of Queen's Bench to do any such thing, and to transact any such business, 
 and to exercise any such authority and jurisdicuion in respect of the same as by 
 virtue of any statute or custom, or by the rules of practice of the said Courts, or 
 any of them respectively, are now orinay hereafter be done, transacted (>r exer- 
 cised by a Judge of either of the said Courts sitting at Chambers, and as shall be 
 specified in any such rule, except in respect of matters relating to the liberty of the 
 subject." In pursuance of the authority given by that Act general rules were 
 mside 9th Feb., 1870, empowering the Clerk of the Crown and Pleas of the Court 
 of Queen's Bench to " transact all such business, and exercise all such authority 
 and jurisdiction in respect of the same as by virtue of any statute or custom, or by 
 the rules and practice of the said Courts, or any of them respectively, were at the 
 time of the passing of the said Act and are now done, transacted or exercised by 
 any Judge of the said Courts sitting at Chambers, except in respect of matters 
 relating to the liberty of the subject, and to prohibitions and injunctions, and 
 except (unless by consent of the parties) in respect of the following proceedings and 
 matters, that is to say : All matters relating to criminal proceedings ; the removal 
 of causes from inferior Courts, other than the removal of judgments for the purpose 
 of having execution ; the referring of causes under the Com. Law Pro, Act ; 
 reviewing taxation of costs ; staying proceedings after verdict ; appeals in Insol- 
 vency. In all such excepted matters, not being matters relating to the liberty of 
 the subject, the said Clerk may issue a summons returnable before a Judge, ' That 
 in case any matter shall appear to the said Clerk of the Crown to be proper for the 
 decision of a Judge, the Clerk may refer the same to a Judge, and the Judge may 
 either dispose of the matter or refer the same back to the Clerk with such directions 
 as he may think St.' " 
 
 ;\5 
 
 •i 
 
 
 .4 
 
 M 
 
 ft-; 'ii 
 
 \M 
 
372 
 
 JUDICATURE ACT. 
 
 0» XIjIX. By 37 Vic. (Ont.), c 7, s. 47, the authority conferred upon the Judges therein 
 
 U. e> mentioned, by the 5th section of the "Act respecting proceedings in Judge's Cham- 
 
 berH," passed in the 33rd year of Her Majesty reign, shall, subject to the exception 
 therein contained, extend to empowering the Clerk of the Crown and Pleas of the 
 Con t of Queen's Bench to do any such thing, and to transact any such business, 
 and to exercise any such authority and jurisdiction as are now, or may be hereafter 
 done, transacted or exercised by a Judge of either of the Superior Courts of law 
 V sitting at Chambers. No further general rules were made since the passing of 
 
 this Act. 
 
 ** Referee in Chambers." — The appointment of a Referee in Chambers is provided 
 for by 34 Vic, c. 10, s. 1, now R. S. O., c. 40, s. 8. By G. O. Ohy. No. 560, he 
 was 'I empowered to do any such thing, and to transact any such business, and to 
 exercise any such authority and jurisdiction in respect of the same, or by virtue of 
 any statute or custom or by the practice of the said Court, is now done and trans- 
 acted by a Judge of the Court sitting in Chambers, except the masters following ; 
 (1) granting writs of habeas corpus, and adjudicating upon the return thereto ; (2) 
 appeals and applications in the nature of appeals ; (3) proceedings as to lunatics 
 under the Consolidated Statutes of Upper Canada, c. 12, s. 3:<, and the 28th Vic, 
 c 17, s. 5 to 11 inclusive ; (4) applications for writs of arrest ; (o) petitions for advice 
 under the Property and Trusts Act, 29th Vic, c 28, s. 31 ; (ti) applications as to the 
 custody of infants, under the Consolidated Statutes of Upper Canada, c. 74, s. 8 ; 
 (7) applications as to leases and sales of settled estates, to enable minors, with the 
 approbation of the Court, to make binding settlements of their real and personal 
 estate on marriage ; and in regard to questions submitted for the opinion of the 
 Court, in the form of special cases on the part of such persons as may by themselves, 
 their committees, or guardians, or otherwise, concur therein, under the 28th Vic, 
 c. 17, s. 1 ; (8) opposed applications for administration orders ; (9) opposed appli- 
 cations respecting the guardianship of the person and property of infants ; (10) ex 
 parte injunctions ; (11) proceedings as to partition and sale of real estate, under 
 the Ontario Statute, 32 & 33 Vic, c. 33 ; (12) applications for leave to appeal, or 
 rehear after the time limited for that purpose has elapsed." 
 
 Under R. S. O., c. 40, s. 28, the Court may empower him to transact any 
 business at Chambers, except granting writs of habeas corpus, and adjudicating upon 
 the return thereof ; appeals and applications in the nature of appeals ; proceedings 
 under the 61st to 65th sections inclusive of this Act ; applications for writs of 
 arrest ; applications for advice under the Trustee Acts ; matters affecting the 
 custody of children ; and proceedings under the 85th section of this Act. No further 
 General Orders have been made by the Court on this subject. 
 
 "Required to be done by a Judge." — See notes to 0. IV., r. 1 (a). 
 
 As to the authority which County Court Judges had before the passing of the 
 Judicature Act, see R. S. O., o. 50, s. 148 ; see also new Juclic. Act, sec. 71. 
 
 ■fl 
 
 
 421. 
 
 7. Any official Referee, upon the request of the Mabter in 
 Chambers or of a Judge of the High Court, may sit with or 
 for such Master; and while sitting for him shall have all the 
 authority and power of such Master, but shall not be entitled 
 to any fees. 
 
 See R. S. O., c. 38, s. 9. 
 
 432. 
 
 8. TheCountyCourt Judge of the County in which an action 
 is brought shall, from and after the first day of January, 
 1882, have the same power and authority in the action as the 
 Master in Chambers aforesaid, save and except that the author- 
 ity of such County Court Judges shall not extend to grant- 
 
inl' 
 
 i, ' a 
 
 OFFICERS AND OFFICES. 
 
 878 
 
 ing leave for service out of Ontario, or to allowing ser- 
 vice out of Ontario, of a writ of summons or of notice 
 of a writ of summons ; provided also that in counties in which 
 there is a local Master who does not practise as a Barrister or 
 Solicitor, and who has not taken out a certificate to practise, 
 such local Master shall, in regard to causes and actions brought 
 in his county in the Chancery division, have (in addition to his 
 powers as a local Master) the jurisdiction, power, and authority 
 hereinbefore given to the County Court Judge ; and in such 
 counties the County Court Judge shall have and exercise the 
 said jurisdiction, power-, and authority ordy in regard to causes 
 and actions brought in his county in the Queen's Bench and 
 Common Pleas Divisions ; 
 
 See Eng. R. Sup. C, June, 1876, r. 19 ; R. S. O., c. 50, s. 148. 
 
 " As the Master in Chambers." — See rule 6 of this Order. 
 
 "Granting leave of service out of Ontario." — By O. VII., r. 4, it is not necessary 
 before serving the writ to apply to the Court or a Judge to allow the service. 
 
 "In addition to his power as local Master." — Where a bill is filed with a Deputy 
 Registrar, the Local Master and Deputy Registrar respectively in the county where 
 Buph bill has been filed, are to have all such powers and authorities in relation to 
 such suit as belong to the Master and Clerk of Records and Writs respectively, 
 G. O. Chy. No. 35. In addition to the powers and authorities conferred upon 
 Local Masters by this Order, the Local Master in the county where the bill 
 has been filed may hear and dispose of all applications in the progrecs of such suit 
 for the following purposes : (l)To appoint guardians ad litem for infants; (2) for 
 time to answer or demur ; (3) for leave to amend before replication ; (4) to postpone 
 the f xamination of witnesses, or to allow further time for the production of evi- 
 dence ; (.5) for security for costs, G. 0. Chy. No. 36. Local Masters also perform 
 the duties of their offices in proceeding upon references made to them by the Court 
 under decrees or orders in the same manner and under the same regulations as the 
 Master does. See G. O. Chy. No. 34 
 
 (a) The power and authority of a County Court Judge 
 under this Rule shall not apply to any action in which 
 the writ is issued in the County of York, or (except by con- 
 sent) to any action wherein the solicitors for all parties 
 do not reside or have not offices in the county town of the 
 county in which the action is brought, or wherein any party 
 who has no solicitor does not reside in, or has not a place of 
 business in, the county or union of counties. Such consent by 
 a solicitor maybe general by a memorandum in writing filed in 
 the office of the Deputy Registrar or Deputy Clerk of the 
 Crown ; or may be confined to any particular action or appli- 
 cation and be manifested as in the case of any other con- 
 sent by a solicitor in a cause or matter. 
 
 See R. S. O., c. .50, s. 148, sub-s. 2. 
 As to ex parte orders, see the next rule. 
 
 433. 
 
 9. The power and authority of a County Court Judge to 
 make ex parte orders shall not be subject to the limitation set 
 
 K. M. 
 
 ! ■ 
 
 S 
 
 n 
 
 
 
 If 
 
874 
 
 JUDICATURE ACT. 
 
 O. XI.IX. 
 B. 9. 
 
 !- 
 
 ■'4 'H*'-^ 
 
 
 i;i« . 
 
 forth in the preceding paragrajth (a), and may be made though 
 the Solicitors for all parties do not reside in the same 
 County. 
 
 By rule 8 it is provided, however, that certain ex parte orders cannot be made by 
 a County Judge. 
 
 434. 
 
 10. But no money shall be distributed or paid out for costs 
 or otherwise, without the order of a Divisional Court, or of a 
 Judge of the High Court in court or chambers, (except money 
 paid into court by a defendant by way of satisfaction or amends, 
 and not belonging in whole or in part to an infant or feme 
 covert); &nd on the application for such order, the Court or Judge 
 may review, amend or refer back to the master his report or 
 order, or make such other order as the Court or Judge deems 
 proper. 
 
 See G. O. Chy. No. 639. 
 
 436. 
 
 11. Every application to a County Court Judge or local 
 Master under the Act or these Rules shall, where notice of the 
 application is necessary, be made in a summary way by sum- 
 mons ; 
 
 See Eng. K. Sup. C, O. XXXV., r. 5. 
 
 Applications at Chambers in Toronto are to be upon notice of motion, O. 
 XLVII., r. 1. 
 
 (a) A summons shall be m the form No. 108 in Appendix (H) 
 hereto, with such variations as circumstances require. It shall 
 be addressed to all the persons on whom it is to be served ; 
 
 See Eng. R. Sup. C, April, 1880, r. 34. 
 
 (b) A summons shall be prepared by the applicant or his 
 solicitor, and shall be signed by the proper officer and when so 
 signed shall be deemed to be issued. The person obtaining a 
 summons shall leave a copy thereof with the officer signing the 
 same. 
 
 See Eng. R. Sup. C, April, 1880, r. 35. 
 
 436. 
 
 12. If any matter appears to the County Court Judge, Master 
 in Chambers or local Master to be proper for the decision of a 
 Judge of the High Court, he may refer the same to such Judge ; 
 
w 
 
 OFFICERS AND OFFICES. 
 
 376 
 
 and such Judge of the High Court may either dispose of the •• ^■'■^' 
 matter, or refer the sr; ne back to the County Court Judge or "** *** 
 officer aforesaid with ^uch directions as such Judge of the High 
 Court may think fit. , 
 
 See Eng. R. Sup. C, O. XXXV,, r. 3. 
 
 This is a re-enactment of Reg. Gen. 9th Feb, 1870, which nrovided "That 
 in case anv matter shall appear to the said Clerk of the Crown to be proper for the 
 decision of a Judge, the Clerk may refer the same toa Judge, and the Judge may either 
 dinpose of the matte or refer the same back to the Clerk with such directions as 
 he may think fit." The Referee in Chambers has a similar power of referring to a 
 Judge, G. 0. Chy. No, 562. 
 
 437. 
 
 13. Any person affected by any order or decision of the County 
 Judge or officer aforesaid may appeal therefrom to a Judge of 
 the High Court at Chambers ; 
 
 (a) Such appeal may be made notwithstanding that the 
 order or decision was in respect of a proceeding or matter as 
 to which the Judge or officer aforesaid had jurisdiction only by 
 consent; 
 
 (b) The appeal shall be by motion, on notice served within 
 4 days after the decision complained of ; or within such further 
 time as may be allowed by a Judge of the High Court or by 
 the County Court Judge or officer aforesaid who^c decision is 
 complained of ; 
 
 (c) The motion shall be made within 8 days after the de- 
 cision has been made which is apjjealed against, or within such 
 further time as may be allowed as aforesaid ; 
 
 (d) In such case, the Deputy Registrar, Deputy Clerk of the 
 Crown or local Registrar,shall,on a praecipe being^ filed in this be- 
 half, transmit to the proper officer of the High Court of Justice 
 all documents filed in his office and required for disposing of 
 the appeal ; and the same shall be transmitted by mail, prepaid 
 and registered, except where all parties interested in such docu- 
 ments file a consent to any other mode of transmission. The 
 said documents shall be returned in like manner when the 
 appeal has been disposed of; 
 
 (e) The appeal shall be no stay of proceedings unless so 
 ordered by a Judge of the High Court or by the Judge or offi- 
 cer whose decision is complained of. ' 
 
 See Eng. R. Sup. 0., O, XXXV., rr. 7, 8, 14 ; 0. LIV., rr. 4-6. 
 
 3 
 
376 
 
 JUDICATURE ACT. 
 
 O. XlilX. Before the paHsing of the Judicature Act the time for appealing in Chancery 
 
 B. 13« from an order made by the Referee in Chambers was fourteen oayH, G. O. Chy. No. 
 
 6K6. The motion had to be actually made within the fourteen days ; it was not sutfi- 
 cient to (five the notice of appeal within that time, Jackson v. Gardner, 15 Or, 425 ; 
 Fox V. Wallis, L. R. 2 C. P. U. 45 ; ( Vom v. Samuels, Ih. 21. An appeal did not 
 lie until the order was signed and L-ntered, Gibb v. Murphy, 2 Ch. Ch. R. 132. 
 
 At Common Law, appeals from an order or decision of the Clerk of the Crown 
 and Pleas of the Court of Queen's B^nch, were by summons taken out within four 
 days after the decision complained of, or such further time as might be allowed by 
 a Judi{e or the said Clerk, Reg. Gen. 9th Feb. 187U. 
 
 " Within 4 days" "vnthin 8 days."— At to computation of time, see 0. LII. 
 
 By the English Order of March, 1879, r. 6, if no Court sits within the 8 days, 
 then the ajjpeal may be on tht- first day on which the Court does sit, t Stirling v. 
 Du Barry, L. R, 5 Q. B. D. 05. 
 
 As to when time will be extended, see Gibbons v. London Financ ->ciation, 
 
 L. R. 4 C. P. D. 263, and notes to sec. 38 of the Act. 
 
 This rule so far as it enacts that an appeal to the Court from a decision at Cham- 
 bers shall be made within 8 days is peremptory, and there is no appeal after the 
 expiration of such time, unless the Court, under O. LII., r. 9, enlarge the time, 
 Crom V. Samuel, 46 L. J. C. L. 1 ; L. R. 2 C. P. D. 21. 
 
 
 O.I.. 
 B. 1. 
 
 ORDER L. 
 
 Costs. 
 
 4188. 
 
 1. Subject to the provisions of the Act, the costs of and in- 
 cident to all proceedings in the High Court shall be in the dis- 
 cretion of the Court; but nothing herein contained shall deprive 
 a trustee, mortgagee, or other person of any right to costs out 
 of a particular estate or fund to which he would be entitled 
 according to the rules hitherto acted upon in Courts of Equity: 
 Provided, that where any action or issue is tried by a jury, the 
 costs shall follow the event, unless, upon application made at 
 the trial, for good cause shewn, the Judge before whom such 
 action or issue is tried or the Court shall otherwise order. 
 
 "Costs of and incident." — "The costs of and incident to all proceedings in 
 the High Court," means the costs of and incident to all proceedings that have 
 actually come into the High Court, and not of proceedings prior to the action, re 
 Brandreth's Trade Mark, L. R. 9 Ch. D. 618. 
 
 " In the discretion of the Court." — See notes to sec. 32 of the Act. 
 
 In an action for damages for breach of covenant, the defendant denied the breach, 
 and also paid money into Court, alleging that it was enough to satisfy the claim. 
 The plaintiff replied, joining issue, alleging that the money was not enough, and 
 the issues having been referred to an official referee, he reported that the money 
 paid in was enough to satisfy the claim. The costs were held to be in the discretion 
 of the Court, and that the discretion in such cases ought to be exercised by allow- 
 ing the plaintiff his costs up to the time of payment into Court, and allowing the 
 defendant his costs after that time, Buckton v. Higgs, L. R. 4 Ex. D. 174 ; but r<»e 
 Langridge v. Campbell, L. B. 2 Ex. D. 281. 
 
 ^i>l 
 
COSTS. 
 
 " Shall follow the event."- Tim rflfect of this nile la to repeal the Btattites which 
 ormerly regulated the cohIs in certiin actiona at law. In ParsoiiB t-. Tinling, I . 
 R. 2C. P. D. 119, Lord Coleridge, C. J., Bald: "The order is made under the 
 Judicature Act, the expresa object of which wan to bring under one ayatem thoae 
 diverging codes of law and practice previoualy known aa Corimon Law and Equity. 
 1 assent to the view of the jilaititifF a counael that, apeaking broadly and leaving 
 out of eight certain caaea in which comparatively recent statutes have interfered, 
 at Common Law the coata followed the event, and were not in the discretion of the 
 Judge, aa in Equity they were. The manifeat object of the Act wua to assimilate 
 the practice at Law and Equity, and to make one rule for all divisions of the one 
 Court. Rpading the order by the light of this intention its meaning seems plain 
 enough. The general rule ia to be that costs are to be in the discretion of the 
 Court, but there ia a reservation of the riglii to coata to which ceitain innocent 
 pai ies, aiich aa truateea, had been previoualy entitled in Equity, and a proviaion 
 that when the action ia tried by a jury the coata are to follow the event, unleaa at 
 the trial, for good cauae ahewn, the Judge or the Couit shall otherwise order." In 
 that case the plaintiff recovered one farthing damages for libel, and the Judge 
 at the trial refused to give any certificate aa to coata :— Held, that the plaintiff waa 
 entitled to coata. Thia deciaion was approved of in Garnet v, Bradley, L. R. 3 
 App. Ca. M4 ; aee also Tenant v. Ellis, L. R. 6 if, B. D. 46. 
 
 " The event " mentioned in the order ia the result of all the nroceedinga incidental 
 to the litigation, and the coata which follow the event inclucie the costs of all the 
 stages of that litigation. Field v. The Great Northern Railway Company, L. R, 3 
 Ex. D. 2G1 ; and see cases under Reference, post. 
 
 Where, on the trial of an action a non-auit ia directed, which is set aside and a 
 new trial granted, and on the second trial the plaintiff has a verdict and judgment, 
 the plaintiff ia entitled to the coata of the firat trial, and of the rule for a new trial 
 aa part of the costs which follow the event, (Jreen v. Wright, L. R. 2 C. P. D. 
 3"»4. But the Judge at the aecond trial haa power to order a plaintiff who recovera 
 a nominal aum to pay the defendant'a costs, even when the action ia tried before a 
 jury. In an action to recover a sum of £85, and alao a aum of aix ahillinga, the 
 plaintiff was non-suited ; a new trial having been ordered, at the second trial, 
 which took place before a jury, he failed aa to hia claim for £,Sn, but proved hia claim 
 for aix ahillinga. The Judge ordered that the plaintiff ahould pay the coata of both 
 triala :— Held, that the order waa right and could not be set aside, Harris v. Peth- 
 erick, 4 Q. B. D. 61L 
 
 '^Application made at the trial." — A judge has power to order a plaintiff who re- 
 covers a nominal sum to pay the defendant'a costs, even when the action ia tried by 
 a jury, Harria v. Petherick, L. R. 4 Q. B. D. fill. At the trial of an action by a 
 jury the Judge may, without any application having been made to him, order that 
 the coata shall not follow the event, Turner v. Heyland, L. R. 4 C. P. D. 432. The 
 application to the Judge muat be at the trial and not subseqiiently in Chambers, 
 Baker v. Oakes, L. R. 2 Q. B. D. 171 ; but where no applici tion or order as to 
 costs ia made at the trial, the Divisional Court haa juriadiction to entertain an ap- 
 plication to deprive the plaintiff of coata, Bower v. Bell, Brooka v. larael, North v. 
 Bilton, Siddona v. I^awrence, L. R. 4 Q. B. D. 95, -('Jo. The Divisional Court has 
 original juriadiction to deprive a aucces:sful party of the costs of an action tried be- 
 fore a jury, Myers v. Defries, L. R. 4 Ex. D. 176. 
 
 Reference. — A cause having been referred to a Master, as a matter of account, 
 and the order of reference being silent as to the costs, the Court refused an appli- 
 cation for an order for coata on behalf of the party in whoae favour the award waa 
 made, Wimhurat, HoUick & Co. v. The Barrow Ship Building Co., L. R. 2 Q. B. 
 
 When in the aame action the jury find for the plaintiff with damages aa to one 
 cause of action, and for the defendants as to other, and distinct, causes of actions, 
 the word "event" in the proviso to the Rulea of Court, 0. LV., r. 1, (Ont. O. L., 
 •■• 1); must be read distributively, and the defendant ia entitled to tax his costs of 
 the issues found for him, provided no order otherwise is made by the Judge who 
 tried the cause or by the Court, Myers v. Defries, L. R. 5 Ex. D. 180. 
 
 The plaintiff, who had built two houaea for the defendant at a contract price o 
 £1,135, Bued for £169 ICa., the balance of the price, and for other small items. The 
 defendant raiaed various defences, and also counter-claimed, £1,200 for penalties for 
 delay and for damages arising for bad work. The pleadinga went as far aurrej oinder, 
 after which, the cause, with all matters in difference, was referred to an architect 
 
 377 
 
 I.. 
 1, 
 
 3 
 
 
M 1 1 
 
 378 
 
 B. I. 
 
 Hi 
 
 III 
 
 I*' 
 mi 
 
 JUDICATURE ACT. 
 
 as arbitrator, upon the terms, inter alia, that the costs of action, reference, and 
 award, should follow the event, unless the arbitrator should otherwise order. The 
 arbitrator by an award, silent as to costs, awarded £.i 28. 6d. to the defendant in 
 respect of the action and matters in difference :— Held, affirming the judgment of 
 the Queen's Bench Division that the word "event" ought to be construed distri- 
 butively, and the award remitted to the arbitrator to find specific issues, Ellis v. 
 Desilva, L. R. 6 Q. B. C. P. & Ex, D. 521. 
 
 Costs where no jurisdiction over cause of action. — As to the Court's power over 
 costs where it has no jurisdiction over the subject matter of an application, see 
 Brown v. Shaw, L. R. 1 Ex. D. 425 ; Great Northern Committee and Inett, L. 
 R. 2 Q. B. D. 284. 
 
 Successful appellants are generally to have their costs. Memorandum, L. R. 1 
 Ch. D. 1. 
 
 Trustees.— See, re Hoskins' Trusts, L. R. 6 Ch, D. 281. 
 
 Partnership.— Aa to costs of -i partnership action, see Hamer v. Giles, L. R. 
 11 Ch. D. 942 ; Downey v. Roaf, 6 Pr. R. 89. 
 
 Counter-claim. — See notes to sec, 16, subs. 4 of the Act. 
 
 ii: 
 
 I- 
 
 
 •v 
 rJl 
 
 «: 
 
 r 
 
 i 
 
 439. 
 
 2, In any cause or matter in which security for costs is re- 
 quired, the security shall be of such amount and be given at 
 such time or times and in such manner and form, as the Court 
 or a Judge shall direct. 
 
 See Eng, R. Sup. C, Feb. 1876, r, 7 ; G, 0. Chy. No. 321. 
 
 Statutes.—^. S. O., c. 50, s. 70, is as follows : — In 2.idition to any ceses in which 
 a defendant in any action may by any law or by the practice of the Courts be 
 entitled to obtain security for costs from a plaintiff, security for costs may be 
 granted to the defendant or applicant in any action or proceeding in which it is 
 made to appear satisfactorily to the Court or a Judge in Chambers that the plain- 
 tiff has brought a for mer action or proceeding for the s^rne cause, which is pending 
 either in Ontario or in any other country, or that he has judgment or rule or order 
 
 Eassed against him in such action or proceeding with costs, and that such costs 
 ave not been paid, and such Court or Judge may thereupon make such rule or 
 order, staying proceedings until such security is given as to the Court or Judge 
 seems meet. By sec. 71 perscms suing as informers or for penalties may in certain 
 cases be ordered to give security for costs. 
 
 R. S. O., c. 51, s. 73, is as follows : " If any person brings an action of ejectment 
 after a prior action of ejectment for the same premises has been unsuccessfully 
 brought by him or by any person through or under whom he claims against 
 the same defendant, or against any person through or under whom he defends, 
 the Court or a Judge may, on the application of the defendant at any time 
 after his appearance entered, orJer that the plaintiff shall give to the def en- 
 pant security for the payment of costs, and that all further proceedings in the 
 cause shall be stayed until such security is given, whether the prior action was 
 disposed of by discontinuance or by non-suit, or by judgment for the defendant." 
 
 42 Vic. (Ont.) c. 15, s. 2, is as follows : " Where by any law, or by the practice of 
 the Courts, a defendant in any action is entitled to obtain security for costs from a 
 plaintiff, the Court or Judge, by whom any rule or order for such security is made, 
 may require the plaintiff to furnish the security within a time to be limited in such 
 rule or order, or by any subsequent rule or order," Sub-s. 2 : "If any person fails, 
 without sufficient excuse, to comply with such rule or order he shall be liable to 
 have his action dismissed as for want of prosecution, with costs, and the Court or 
 a Judge may make an order accordingly, and thereupon judgment of non pros. 
 may be entered," 
 
 Plaintiff out of jurisdirtion.—Secvinty for costs may be required where the 
 plaintiff is, or all of several plaintiffs are, out of the jurisdiction. Walker v. East- 
 erby, 6 Ves, 612 ; and a plaintiff flomiciled abroad, and only temporarily within the 
 jurisdiction, had to give security, Aiuslie v, Sims, 17 Beav. 67 ; Perott v, Novell!, 
 
COSTS. 
 
 379 
 
 reference, and 
 Lse order. The 
 e defendant in 
 le judgment of 
 nstrued dlstri- 
 
 issues, Ellia v. 
 
 rt's power over 
 Eipplication, see 
 ) and Inett, L. 
 
 mdum, L. R. 1 
 
 V. Giles, L. F. 
 
 r costs is re- 
 be given at 
 13 the Court 
 
 V cs aes in which 
 
 the Courts be 
 
 costs may be 
 
 in which it is 
 
 that the plain- 
 
 rhich is pending 
 
 or rule or order 
 
 that such costs 
 
 ,ke such rule or 
 
 Dourt or Judge 
 
 may in certain 
 
 ion of ejectment 
 
 unsuccessfully 
 
 claims against 
 
 ora he defends, 
 
 it at any time 
 
 to the defen- 
 
 ceedings in the 
 
 rior action was 
 
 e defendant." 
 
 f the practice of 
 for costs from a 
 icurity is made. 
 ! limited in such 
 my person fails, 
 lall be liable to 
 nd the Court or 
 nt of non pros. 
 
 ired where the 
 talker v. East- 
 •arily within the 
 trott V. Novelli, 
 
 9 Jur. 770 ; see Swanzy v. Swanzy, 4 K. & J, 237 ; Cambottie v. Inngate, 1 W, R. <>• ■••■ 
 533. So if a plaintiff goes abroad during the suit, Green v. Chamock, 1 Ves. 3% ; R. !i. 
 Hoby V. Hitchcock, 5 Ves. 699 ; Blakeney v. Dufaur, 2 U. M. & G. 771 ; Ed- 
 wardes v. Burke, 9 L. T. N. S. 406 ; Keuaway v. Tripp, 11 Beav. .588 ; Stewart v. 
 Stewart, 20 Beav. 322 ; but if the plaintiff goes abroad on public service, or for a 
 temporary purpose, the rule does not apply, see Golebrooke v. Jones, 1 Dick. 154 ; 
 Evelyn v. Chippendale, 9 Sim. 497 ; Clark v. Ferguson, 1 Giff. 184 ; Lumley v. 
 Hughes, 2 W. R. 112 ; O'Connor v. SieiTa Nevada Company, 23 Beav. 608. 
 
 Security will not be ordered against a plaintiff abroad when it is shewn that he 
 has property within the jurisdiction, White v. White, 1 Ch. Ch. R. 48 ; Gait v. 
 Spencer, 2 Ch. Ch. R. 92 ; nor where there is evidence of his intention to return, 
 White V. Greathead, 1.5 Ves. 2 ; Blakeney v. Dufaur, 2 D. M. & G. 771 ; and see 
 O'Grady v. Munro, 7 Gr. ino ; Harvey v. Smith, 1 Ch. Ch. R. 392; but see also 
 Marsh v. Beard, 1 Ch. Ch. R. 390. Mere intention to go abroad is no ground for 
 ordering security, Wyllie v. Ellice, 11 Beav. 99. Order discharged on plaintiff 
 coming within tifie jurisdiction, Matthews v. Chichester, 30 Beav. 135. 
 
 A plaintiff out of the jurisdiction, with no certain place of abode, and having 
 no property in this Province, though stating on affidavit that she was only tempor- 
 arily aosent and intended to return, was ordered to give security for costs, there 
 being no circumstances from which the Court could reasonably infer that the 
 intention to return would certainly be carried out, Grant v. Winchester, 6 Pr. R. 44. 
 
 Where it appears that the residence of the plaintiff is not known, and that there 
 is reason to believe he has loft the country, security for costs will be ordered to be 
 givon, although it does not appear by the bill that the plaintiff is resident out of 
 the jurisdiction, and is not shewn positively where he is resident, Somerville v. 
 Kerr, 2 Ch, Ch. R. 168. 
 
 Plaintiff out of jurisdiction but havinr/ property within. — A plaintiff resident 
 abroad will not be released from giving security for costs, unless he shew that he 
 has property to the value of $400 within the jurisdiction of the Court, and available 
 in execution. Leasehold property may be sufficient. The i>laintiff had property 
 within the jurisdiction, consisting of a one sixth interest (nominally worth $2,6(10) 
 in lands subject to a lease made to the defendants by the plaintiff's ancestor, the 
 validity of which lease was in question in the s<iit. This lease was for twenty-one 
 years, and ga /e the defemlants an option to purchase ; under its terms no rent or 
 taxes were to be paid until the title had been quieted under the Act for Quieting 
 Titles, or a certificate was refu'ed. In the latter event the defendants were to 
 accept the title or give up the term. Proceedings for quietins^ the title had been 
 instituted, i)ut were still pending. The plaintiff's interest in this property was 
 held insufficient to entitle him to the discharge of an order for security, Higgins v. 
 Manning, 6 P. R. 147. 
 
 A suit was brought to recover possession of certain lands, of which the plai.itiffa 
 claimed to be the trustees, and to restrain the defendant, an over-holding tenant, 
 from committing waste. An order for security for costs had been ol)tained against 
 the plaintiffs by reason of their being out of the jurisdiction. The plaintiffs applied 
 to discharge the order on thegrouml that they had property within the jurisdiction, 
 and the property relied on was the property in question in this suit : —Held, that 
 the plaintiffs not being entitled in their own right to the property, it did not con- 
 stitute sufficient security for costs, McKenzie v. Sinton, 6 P. R. 282. 
 
 The subsequent acquisition of property is no ground for rescinding an order for 
 security for costs, Reaume v. Leavitt and Reaume o. Trowbridge, 6 P. R. 70. 
 
 On the plaintiff shewin.? he had lands in the Province worth $4,000, an order 
 for security for costs obtained on prrpcipe was set aside, and, the order being also 
 irregular in form, it was set aside with costs, Ganson v. Finch, 3 Ch. Ch. R. 296. 
 
 Misdescription of ptom(t(f,— Security may be required where a plaintiff mia- 
 describes himself, Sandys v. Long, 7 Sim. 140 ; Oldale v. Whitcher, 5 Jur. N. S. 84 ; 
 Somerville v. Kerr, 2 Ch. Ch. R. 168; but if misdescription innocently inserted, 
 and the defendant knows the real address, security will be refused. Hurst ?;. 
 Padwick, 12 Jur. 21 ; Smith v. Cornfoot, I D. & S. 684 ; and for instances of 
 accidental errors, see Watts v. Kelly, 6 W. R. 206 ; Clark v. Clark. 14 W. R. 449 ; 
 and if the plaintiff cannot be found at the address given, it is the defendant's 
 duty to make inquiries from his solicitor before applying for security, Knight v. 
 Cory, 11 W. R. 254 ; Manby v. Bewicke, 8 D. M. & Gf. 468. 
 
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 JUDICATURE ACT. 
 
 
 
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 ••I'* The Court will order a plaintiff to give security for costs if he misdescribes 
 
 Mt, 4. himself in his bill through an improper motive, or with the intention of misleading 
 
 the defendant, even though on the application for security the plaintiff should 
 furnish his true address. A plaintiflF who had been for several years, and was at 
 the time of the filing of the bill, resident in the United States, described herself in 
 her bill as of the Township of Bertie, in the Province of Ontario. Under these 
 circumstances the Court refused to discharge an order for security, although the 
 plaintiff had return' d to the jurisdiction and stated that in was her intention to 
 reside there for the rest of her life, Waldron v. Mc Walter, 6 P. R. 145. 
 
 Second suit for same cause of action. See statutes quoted ante. Held, on an ap- 
 plication for security for costs, uim^ Con. Stat. U. C, c. 27, s. 76, that the 
 lact of the costs of the former unsuccessful actions having been paid, is not a 
 ground for refusing to make an order, Chambers v. Unger, 6 P. R. 101. 
 
 In Curtiss v. McNabb, 7 P. R. 246, certain proceedings in the Surrogate Court, 
 by the present plaintiff, were determined in favour of the defendant, apd judgment 
 was given for him, with costs to be paid out of the estate. The plaintiff then filed 
 her bill, raising substantially the same questions as those tried in the Surrogate 
 Court : — Held, that the plaintiff could not be ordered to give security for the costs 
 of the present suit (under 29 & 30 Vic, c. 42, s. 1,) for the costs of the former pro- 
 ceedings were not payable by her, but out of the estate. 
 
 To bring a case within the statute, 29 & ."JO Vic, c. 42, (R. S. O., c 50, s. 70,) 
 requiring security for costs, where another action for same cause is pending, it must 
 be clearly shewn the causes of action are identically the same, and not merely 
 growing out of the same transaction. And, qaare, does the Act apply at all to 
 this Court, or to a case where one action is at law and the other in this Court, 
 Dean v. Lamprey, 2 Ch. Ch. R. 202. 
 
 Where plaintiff is only a nominal party. — The plaintiff will be ordered to ^,.'"6 
 security for costs, where it is shewn that he is insolvent, and is carrying on the suit 
 for the benefit of another party who seeks to escape the risk of costs. Mason v. 
 Jeffrey, 2 Ch. Ch. K. 15. 
 
 Where the plaintiff had parted with his interest in the land in question, pro- 
 ceedings were stayed until security for costs should be given or the defective state 
 of the record cured. Swan v. Adams, 7 P. R. 147. 
 
 Where the assignee of one of the plaintiffs, who had obtained his discharge in 
 insolvency, brought an action in the name of the plaintiffs on an old jndguient 
 which had been assigned to the insolvent by the other plaintiffs, and to the 
 benefit of which the assignee was entitled, he was ordered to give security for costs, 
 Boice V. O'Loam, 7 P. R. 359. 
 
 A petition by the defendant to reduce the amount of alimony allowed in the 
 suit, cauie to be heard on the fifth of October, when counsel for the plaintiff appeared 
 and procured an enlargement for two weeks, to answer the defendant's affidavits, 
 and f>n the same day demanded and received copies of them. On the 19th October, 
 the counsel appeared and obtained a further enlargement for two weeks, but before 
 the time expired, applied for an order for security for costs on the grounds : (I) 
 that the petitioner was insolvent ; and (2) that the application, though made in the 
 name of the plaintiff, was really for the benefit of a third person :— Held, without 
 expressing an opinion on the merits, that the plaintiff had waived her j-ights, if any, 
 to such security, Knowlton v, Knowlton, 8 P. R. 400. 
 
 Husband and wife, — An order for security of costs will not be made in an alimony 
 suit, Bennett v. Bennett, 7 P. R. 54. 
 
 Where a husband brought an actitm of ejectment in his ovm name and that of 
 his wife, upon a covenant for re-entry upon default being made in payment of an 
 annuity reserved to them jointly, an application by the wife for security for costs 
 from her husband, on the ground that he was using her name without her authority, 
 was refused, but leave was given to her to renew the application on the Judge being 
 satisfied that there was not a good cause of action, or that there was a good defence, 
 and that she had separate estate liable to execution, Junkin v, Junkin, 7 P. R. 362. 
 
 Company. — As to security to be given by a company, see Imperial Bank of 
 China v. Bank of Hindostan, L. R. 1 Ch. App. 437 ; City of Moscow Gas Co. v. 
 International Finance Co., L. R. 7 Ch. App. 225 ; re Home Assurance AsRociation, 
 L. R. 12 £q. 69 ; Accidental Marine Assurance Co. v. Mercati, L. R. 3 £p. 200. 
 
COSTS 
 
 381 
 
 le in an alimony 
 
 Solicitor and Client— Where on petition against a colicitor for an account, it was «». tt. 
 alleged, and not denied, that he had large sums of the client's money in hia hands, if, >|, 
 the petitioner, though resident in a foreign country, was relieved from giving 
 security for costs. The rule requiring security for costs is not so positive and in- 
 flexible but that the Court will relax it in their discretion where the circumstan- 
 ces of the case require it, re Carrol, 2 Ch. Ch. R. 305. 
 
 In re A. B., an attorney, 6 P. R. 210, it was held, that the fact that a client who 
 has applied to have an attorney's bill taxed, is out of the jurisdiotionj is not a suffi- 
 cient ground for security for costs, but, upon special circumstances being shewn, 
 it may be. 
 
 Interpleader. — In Walker v. Niles, 3 Ch. Ch. R. 108, it was held, that the claim- 
 ant under an interpleader issue, if out of the jurisdiction, is bound to give security 
 for costs. 
 
 Waiver.— As to a defendant waiving his right by taking voluntary steps in the 
 cause after notice of the facts entitling him to security, see Atkins v. Cooke, 3 Dr. 
 694 ; Smith v. Pey, 2 Ch. Ch. R. 45G ; Knovvlton v. Knowlton, 8 Pr. R. 400. If he 
 acts without such notice he does not lose his right though he might have discovered 
 the facts by inqniry, Swanzy v. Swanzy, 4 K. & J. 237 ; see Washoe Mining Co. 
 V. Ferguson, L. R. 2 Eq. 371 ; Pendry v. (J'Neil, 7 P. R. 52 ; nor if the proceedings 
 taken by him were forced on him, re Home Assurance Association, L. R. i2 Eq. 112 ; 
 Macan v. Borradaile, 10 W. R. 74; by a motion for injunction, Murrow v. Wilson, 
 12 Beav. 497 ; or for production of ducuments. Cooper v. Purton, 8 W. R. 702 ; nor 
 where he demurs, Watteau v. Billam, 3 D. & S. 516 ; Drinan v. Mannix, 3 Dr. & 
 W. 155. 
 
 Security for costs will not be ordered to be given where a defendant has obtained 
 further time to answer, Arthur v. Brown, 3 Ch. Ch. R. 395. 
 
 Where a defendant had by answering waived his right to security for costs, and 
 the plaintiff assigned his interest in the mort^iage.the subject of the suit, to a party 
 resident out of the jurisdiction, it was held that the defendant was entitled to security 
 for costs against the new plaintiff. The fact that the suit was a foreclosure suit, 
 was held not to disentitle the defendant to the order for security for costs against 
 the plaintilf, although a mortgagor, he disputing that anything was due, and the 
 Master being directed to inquire "what if anything was due," Thompson v. Calla- 
 gan, 3 Ch. Ch. R. 15. 
 
 Practicti— Obtaining order. — If it appears by the indorsement of the writ that the 
 
 ?laintifif resides out of the jurisdiction, the order may be obtained on praecipe, O. 
 I., r. 4. In other cases an application must be made upon notice. But an order 
 for security for costs can only be obtaineil upon prcecipe, when the plaintiff admits 
 on the fase of the bill that he is resident abroad, and there is nothing in the bill 
 qiialify'iiF such admission. Where a bill described the plaintiflF as " oif the City of 
 Tcrunto," but afterwards contained the following statement, "by the advice of a 
 physician the plaintiff has sought change of air, and is now temporarily resident at 
 Roohexter":— Held, that it must be concluded that the residence was only tem- 
 porary, and no order for security must be granted, Wilson v. Wilson, 6 P. R. 152. 
 
 Practice — Frntn of order. — In Chancery the usual form of order is, " that the 
 plaintiff do procure some sufficient person or persons, resident within the juris- 
 diction of this Court, to give security on behalf, in the penal sum of not less 
 than $400, to answer the costs of the defendant in case this Court shall think fit to 
 award any before the said defendant shall be obliged to put in his answer 
 to the said bill," Leggo's Forms, No. 72. 
 
 A recent statute (42 Vic, (Ont.) c. 15,) provides as follows :—" Sec. 2. Where 
 by any law, or by the practice of the Courts, a defendant in any action is entitled 
 to obtain security for costs from a plaintiff, the Court or Judge by whom any rule 
 or order for such sectirity is made, may require the plaintiff to furnish the security 
 within a time to be limited in such rule or order, or by any subsequent rule or order. 
 Sub-8. 2. If any person fails, without sufficient excuse, to comply with such rule or 
 order, he shall be liable to have his action dismissed as for want of prosecution, 
 with costs, and the Court or a Judge may make an order accordingly, and thereupon 
 judgment of non pros may be entered. " 
 
 It has been thought that this statute applies to proceedings at law only, but as it 
 prescribes a rule of practice, the principle of which is adopted by the present orders 
 in the case of ex parte order (see rule 4 of this Order), it is probable that all orders 
 will now in the first instance, limit the time within which security is to be given. 
 
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 JUDICATURE ACT. 
 
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 O. Ij. Practice — Default of security. — If the order limits no time within which security 
 
 B, a. '^ *" be given, the proper notice is that the plaintifif do procure some sufficient per- 
 
 son, etc., and that in default, the action be dismissed for want of prosecution, Gid- 
 dings V. Giddings, 10 iieav. 29. 
 
 Practice — Form of Bottd.—O. L., r. 3, requires that in future the bond be given to 
 the party or persons requiring the security, and not to an officer of the Court. 
 
 Tn Chancery the practice has been to require security to the amount of 8400, 
 and at Common Law $200. The amount may now be largely increased in a proper 
 case, Republic of Costa Rica v. Erlanger, L. R. 3 Ch. D. 62. 
 
 After an order for security for costs had been made, the cause came on to be 
 heard and was postponed on terms which were arranged at the time. Subsequently 
 an application for further security was made :— Held, that such an order could not 
 be made at this stage, as the application should have been made at the hearing, 
 Simon v, Le Banque Nationale, 7 P. R. 422. 
 
 Instead of giving security by bond the plaintiff may pay money into Court, 
 Cliff V. Wilkinson, 4 Sim. 122 ; as to payment out of the money, see Luther v. 
 Ward, 2 Ch. Ch. R. 175. 
 
 430. 
 
 3. Where a bond is to be given as security for costs, it shall 
 unless the Court or a Judge otherwise directs, be given to the 
 party or persons requiring the security, and not to an officer 
 of the Court. 
 
 See Eng.R. Sup. C, April, 1880, r. 41 ; Court of Appeal Orders, March, 1878, 
 No. 2, Ont. ; G. O. Chy. No. 321. 
 
 431. 
 
 4. Where it appears, by the wrii. of summons, notice, or other 
 proceeding by which a suit is instituted, or by an indorsement 
 thereon, that the plaintiif resides out of Ontario, the defendant 
 shall be entitled on praecipe to an order requiring the plaintiff 
 within 4! weeks from tlie service of the order to give security 
 in $400 for the defendant's costs of the action staying all fur- 
 ther proceedings in the meantime, and directing that in default 
 of such security being given the action be dismissed with costs 
 against such defendant, unless the Court or Judge upon special 
 application for that purpose shall otherwise order. 
 
 This follows the Chancery practice, see notes to rule 2 of this Order. 
 " Within 4 weeks." — As to computation of time, see O. LIT. 
 " Court or Judge."— See notes to O. iV., r. 1 (a). 
 
 432. 
 
 5. Until a tariff of fees payable in stamps or otherwise is 
 provided by Rule of Court, approved by the Lieutenant-Gov- 
 ernor in Council, the fees to be so payable shall be the fees 
 now so payable on similar proceedings (if any) in the Courts of 
 Queen's Bench and Common Pleas ; and where there is no 
 
COSTS. 
 
 383 
 
 ohe fees* now payable on similar proceedings in the Court of *• *• 
 
 similar proceeding in those courts, the fees to be so paid shall be •• '"• 
 ohe fees n ' ' " " " • .> /^ ■ <• 
 
 Chancery. 
 
 433. 
 
 6. As to taking copies of documents in possession of another 
 party, or extracts therefrom, under Rules of Court or any 
 special order, the party entitled to take the copy or extract is 
 to pay the solicitor of the party producing the document for 
 such copy or extract as he may, by writing, require, at the rate 
 of 10 cents per folio ; and if the solicitor of the party produ- 
 cing the document refuses or neglects to supply the same, the 
 solicitor requiring the copy or extract is to be at liberty to 
 make it, and the solicitor for the party producing is not to be 
 entitled to any fee in respect thereof. 
 
 See Eng. K, Sup. C. of August 12th, 1875, " Coats," r. 16. 
 
 434. 
 
 7. Where a petition in any cause or matter is served, and 
 notice is given to the party served that in case of his appear- 
 ance in Court his costs will be objected to, and accompanied by 
 a tender of costs for perusing the same, the amount to be ten- 
 dered shall be $.5. The party making such payment shall 
 be allowed the same in his costs, provided such service was 
 proper, but not otherwise ; but this order is without prejudice 
 to the rights of either party to costs, or to object to costs where 
 no such tender is made, or where the Court or Judge shall 
 consider the party entitled, notwithstandiug such notice or 
 tender, to apptar in Court. 
 
 See R. Sup. C. of Aug. 12, 1875, " Costs," r. 17. 
 
 "Petition.'' — As to unnecessary appearance upon motion, see rule 10 of this 
 Order. 
 
 If a petitioner on serving a petition on a respondent, the necessity for whose 
 appearance is a matter of doubt, at the same time olfers him forty shillings in 
 order to enable him to get legal advice, and the respondent afterwards appears, the 
 Court will consider whether the appearance be justified et" not, and, if it finds that 
 the appearance was not justified, will not order the petitioner to pay the respond- 
 ent's costs of appearance ; otherwise the respondent must have his costs of appear- 
 ance, In re Duggan's Trusts, L. R. 8 Eq. H97. This case was approved of in Wood 
 V. Boucher, 19 W. R. 234. Real estate subject to several inctnnbrances was sold 
 by the first incumbrancer under a power of sale in his mortgage deed, and the 
 surplus purchase money was paid into Court under the Trustees' Relief Act. The 
 second incumbrancer, whose debt was greater than the fund in Court, presented a 
 petition stating the other incumbrances and praying for payment of the fund to 
 himself. This petition was served on the other incumbrancers, with a notice by the 
 solicitor of the petitioner to each incumbrancer that if he appeared on the petition 
 the payment of his costs out of the petition would be resisted :— Held, that the in- 
 cumbrancers 80 served who appeared at the hearing of the petition were not entitled 
 to their coats out of the fund, Roberta v. Ball, 24 L. J. Ghy. 471. 
 
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 JUDICATURE ACT. 
 
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 8. The Court or Judge may, at the hearinor of any cause or 
 matter, or upoa any application or procedure in any cause or 
 matter in Court or at Cliambers, and whether the same is ob- 
 jected to or not, direct the costs of any pleading, affidavit, evi- 
 dence, notice to cross-examine witnesses, account, statement, or 
 other proceeding, or any part thereof, which is improper, un- 
 necessary, or contains unnecessary matter, or is of unnecessary 
 length, to be di.sillowed; or may direct the taxing officer to 
 look into the same and to disallow the costs thereof, or of such 
 part thereof, as he shall find to be improper, unnecessary, or to 
 contain unnecessary matter, or to be of unnecessary length. 
 In such case the party whose costs are so disallowed shall pay 
 the costs occasioned to the other parties by such unnecessary 
 proceeding, matter, or length ; and in any case where such 
 question shall not have been raised before and dealt with by 
 the Court or Judge, the taxing officer may look into the same 
 (and, as to evidence, although t^e same may be entered as read 
 in any decree or order) for the purpose aforesaid, and there- 
 upon the same consequences shall ensue as if he had been spec- 
 ially directed to do so. 
 
 See Bag. R. Sup. 0. of Aug. 12, 1875, " Costs," r. 13, 
 
 436. 
 
 9. In any case in which, under the preceding Rule No. 8, 
 or any other rule of Court, or by order or direction of a Court 
 or Judge, or otherwise, a party entitled to receive costs is liable 
 to pay costs to any other party, the taxing officer may tax the 
 costs such party is so liable to pay, and may adjust the same by 
 way of deduction or set off, or may, if he shall think tit, delay 
 the allowance of the costs such party is entitled to receive 
 until he has paid or tendered the costs he is liable to pay ; or 
 such officer may allow or certify the costs to be paid, and the 
 same may be recovered by the party entitled thereto in the 
 same manner as costs ordered to be paid may be recovered. 
 
 See Eng. R. Sup. C. of Aug. 12, 1875, "Costa," r. 19. 
 
 By an arbitrator's award in an action the plaintiff was ordered to pay a sum of 
 money to the defendant, and the defendant was ordered to pav the plaintiff a part 
 of his costs when taxed:- Held, that the defendant was entitled to have the debt 
 set off against the taxed costs, and that the right of set-off in such a case was not 
 interfered with by the ordinary solicitor's lien for costs. Rule 28 of Additional 
 RuIhs of Court ('''Costs "J, 1875 (Ont. O. L., r. 18), when applied to the Chancery 
 Division does not mean that the old Common Law rules as to costs shall prevad 
 in the Chancery as well as the other Divisions, but that the rules of the old Court 
 of Chancery as to costs shall, except where altered by the new rules, remain in 
 force in the Chancery Division, Pringle v. Gloag, L. R. 10 Ch. D. 676. 
 
COSTS. 
 
 38^ 
 
 In Ross V. McLay, 7 P. R. 97, it was heUl that a special lien, given upon the <>• ■'- 
 proceeds of a judgment pending an appeal from such judgment, must prevail against r. 9. 
 an application to set off judgment. It was also held that the Toronto agents of a 
 party suing in person have no lien for the costs incurred in the suit by such agents. 
 
 In May, 1875, a deed of separation was executed between defendant and plaintiff, 
 husband and wife, by which defendant was to pay the plaintiff §100 a year, quai-terly, 
 as maintenance. Afterwards in September, 1875, the plaintiff, objecting to the 
 security offered, filed a bill for alimony, and defendant served a notice agreeing to 
 allow her 8100 a year, quarterly, for interim alimony. The plaintiff accepted the 
 notice, and defendant paid this alimony until May, 1876, when a decree was made for 
 specific performance of the agreement, but the plaintiff was ordered to pay defendant's 
 costs :— Held, that the plaintiff must give credit for the sums paid as interim 
 alimony ; and executions issued for the whole sum, payable under the agreement, 
 were set aside ; the costs payable by plaintiff were also ordered to be set off against 
 the allowance, though such set-off was not asked for in the notice of motion, 
 MaxweU v. Maxwell. 7 P. II. G3. 
 
 InCuthbert v. Commercial Travellers' Association, Blake, V.-C, said: (7 P. R. 
 2.'5.5) " I think I should not interfere to deprive either a solicitor or an attorney 
 of the charge in his favour of the costs where the matters are not identical. It is 
 true, that where there is a matter in issue between the same parties, there is the 
 right to compromise and to set off between the parties, and on the ultimate balance 
 there is a lien for costs. But where there is a different cause of action in different 
 Courts, and the costs are unpaid, I do not think I should deprive either the 
 attorney or solicitor of the right to claim the costs which he has earned as against 
 the person who has been ordered to pay them. I think the plaintiff shcidd pay 
 the costs of the suit and of this application." 
 
 437. 
 
 10. Where any party appears upon any application or pro- 
 ceeding in Court or at Chambers, in which he is not interested, 
 or upon which, according to the practice of the Court, he ought 
 not to attend, he is not to be allowed any costs of such ap- 
 pearance, unless the Court or Judge shall exnresslv direct such 
 costs to be allowed. 
 
 See Eng. R. Sup. C. of 12th August, 1875, "Costs," r. 21. 
 As to tender of $5 with a petition, see rule 7 of this Order. 
 
 438. 
 
 11. There shall be two or more taxing officers of the 
 Supreme Court ; and they and each of them shall for the pur- 
 pose of any proceeding before them or him, have power and 
 authority to administer oaths, and shall, in relation to the 
 taxation of costs, perform all such duties as have heretofore 
 been performed by the Registrar of the Court of Appeal or 
 by any of the Masters, Taxing Officers, Registrars, Deputy 
 Registrars, or other officers of any of the Courts whose juris- 
 diction is by the Act vested in the High Court of Justice or 
 Court of Appeal ; and shall, in respect thereof, have such 
 powers and authorities as previous to the commencement of 
 the Act were vested in any of such officers, including exam- 
 ining witnessess, directing production of books, papers, and 
 
 25 
 
 -«• I 
 
386 
 
 JUDICATURE ACT. 
 
 <». Li. 
 
 B. II. 
 
 documents, making separate certificates or allocaturs, requiring 
 any party to be represented by a separate solicitor ; and to 
 direct and adopt all such other proceedings as could be directed 
 and adopted by any such officer on references for the taxation 
 of costs, and taking accounts of what is due in respect of such 
 costs, and such other accounts connected therewith as may be 
 directed by the Court or a Judge. 
 
 See Eng. R. Sup. C. of 12th August, 1875, " Costs," r. 23. 
 
 See also rule 8 of this Order. 
 
 For form of certificate of taxation, see Forms, No. 173. 
 
 439. 
 
 12. The preceding Rule shall not be construed as inter- 
 fering with the power heretofore possessed by local officers to 
 tax costs ; 
 
 *ff -I 
 
 ■^m 
 
 
 (a) Every bill of costs in a suit pending in the Court ot 
 Chancery at the commencement of the Act, every bill of costs 
 in any action thereafter brought in any Division of the High 
 Court for the administration of an estate, or for partition. (»• 
 for the foreclosure, redemption or sale of mortgaged premises, 
 and every bill in any other action where the amount is to be 
 paid out of an estate or out of a fund in Court, or where the 
 amount taxed affects the interest of an infant, shall be subject 
 to revision according to the practice hitherto prevailing in the 
 Court of Chancery : and the Orders of that Court numbered 
 from 310 to 313 inclusive shall in other respects be deemed 
 applicable thereto ; 
 
 (6) In other cases any party interested may as of right have 
 the taxation of the local officer revised, without giving the 2 
 days' notice to the opposite party required in the 353rd section 
 of the Common Law Procedure Act (R. S. 0., ch. 50); which 
 section shall in other respects apply to all the divisions of the 
 High Court ; 
 
 (c) In the cases last aforesaid, the party desiring the revision 
 shall give notice thereof to the opposite party,and on a praecipe 
 being filed with such local officer, such officer is to transmit the 
 bill to the taxing officer at Toronto for revision, and the prac- 
 tice thereon is to be as provided by the said Chancery Orders ; 
 
 {d) Pending such revision, judgment may be entered and 
 execution issued, unless the Court or a Judge otherwise orders; 
 
 

 COSTS. 
 
 and in case of an execution being so issued, if the amount taxed o* i<> 
 is reduced on revision, the party entitled to the costs shall *• **• 
 forthwith give notice of the reduction and of the amount thereof 
 to the Sheriff or other officer in whose hands the execution 
 had been placed ; and the amount struck off on the revision 
 shall be deducted from the amount indorsed on the execution. 
 
 For the Chancery practice, see G. 0. Chy, Nos. 310—313, post. 
 
 As to objections to be taken before the taxing officer, see rule 20 of this Order. 
 
 The taxing officer, on revision of bills of costs taxed by a Local Master, has 
 l)ower under Gen. Orders 311 & 312, not only to strike out items improperly 
 allowed, but also to restore items improperly struck out and generally to review the 
 taxation. Evidence cannot be received by a taxing officer to make costs payable 
 otherwise than they appear to be by the order awarding them when explamed by 
 the ordinary rules of construction, Keim v. Yeagley, 6 P. R, 60 ; and see re Robert- 
 son, 24 Gr. at p. 660. 
 
 440. 
 
 13. The taxing officer shall have authority to arrange and 
 direct what parties are to attend before him on the taxation of 
 costs to be borne by a fund or estate, and to disallow the costs 
 of any party whose attendance such officer shall in his discre- 
 tion coDsider unnecessaiy in consequence of the interest of such 
 party in such fund or estate being small or remote, or suffi- 
 ciently protected by other parties interested. 
 
 See Eng. R. Sup. C. of August, 1875, " Costs," r. 24. 
 
 387 
 
 441. 
 
 14. Where any party entitled to costs refuses or neglects to 
 bring in his costs for taxation, or to procure the same to be 
 taxed, and thereby prejudices any other party, the taxing offi- 
 cer shall be at liberty to certify the costs of the other parties, 
 and certify such refusal or neglect, or may allow such party 
 refusing or neglecting a nominal or other sum for such costs, so 
 as to prevent any other party being prejudiced by such refusal 
 or neglect. 
 
 See Eng. R. Sup. C. of August, 1875, " Costs," r, 25. 
 
 44a. 
 
 15. As to costs to be paid or borne by another party, no 
 costs are to be allowed which do not appear to the taxing offi- 
 cer to have been necessary or proper for the attainment of 
 justice or defending the rights of the party, or which appear 
 
388 
 
 O. li. 
 B. IS. 
 
 JUDICATURE ACT. 
 
 to the taxing officer to have been incurred through over-caution^ 
 negligence, or mistake, or merely at the desire of the party^ 
 
 See Eng. B. Sup. G. of August, 1875, "Costs," r. 26. 
 
 443. 
 
 16. Where a solicitor's bill of fees, charges and disburse- 
 ments as delivered to a client or other person is referred to 
 the Master to be taxed, the solicitor is to give credit for all 
 sums of money by him received from or on account of the said 
 client, and is to refund what, if anything, he may on such 
 taxation appear to have been overpaid ; 
 
 (a) The Master is to tax the costs of the reference and certify 
 what shall be found due to or from either party in respect of 
 the bill and demand and of the cost of the reference, to be 
 paid according to the event of the taxation pursuant to the 
 statute ; . 
 
 (6) The solicitor is not to commence or prosecute any action 
 or suit touching the demand pending the reference without 
 leave of the Court or a Judge ; 
 
 (c) Upon payment by the said client or other person of 
 what (if anything) may appear to be due to the solicitor, the 
 solicitor (if required) is to deliver to the said client or other 
 person, or as he may direct, all deeds, books, papers, and writ- 
 ings in the said solicitor's possession, custody, or power, 
 belonging to the said client ; 
 
 (d) The order shall be read as if it contained the above par- 
 ticulars, and shall not set forth the same, but may contain any 
 variations therefrom, and any other directions which the Court 
 or Judge shall see fit to make. 
 
 See the Attorneys' Act, post. 
 
 444. 
 
 17. The order, when grantable of course, shall be issued on 
 praecipe by the registrar, deputy registrar, local registrar, or 
 deputy clerk of the crown. 
 
 445. 
 
 18. The riiles, orders, and practice of any Court, whose ju- 
 risdiction is vested in the High Court of Justice or Court of 
 

 COSTS. 
 
 Appeal, relating to costs, and to the allowance of the fees of •• ■'• 
 solicitors and attorneys, and to the taxation of costs, existing "• **• 
 prior to the commencement of the Act, shall, in so far as they 
 are not inconsistent with the Act and the Rules of Court 
 in pursuance thereof, remain in force and be applicable to costa 
 of the same or analogous proceedings, and to the allowance of 
 the fees of solicitors of the Supreme Court and the taxation of 
 costs in the High Court of Justice and Court of Appeal. 
 
 See Eng. R. Sup. C. of August, 1875, " Costs," r. 28 ; R. S. O., c. 50, s. 334. 
 See Pringle v. Gloag, L. R. 10 Ch. D. 676, cited in notes to rule 9 of this Order. 
 
 446. 
 
 19. The taxing officers shall perform their duties under and 
 subject to any supervision which from time to time may appear 
 to the Judges of the Supreme Court to be necessary or proper, 
 and may by them be directed, in order to secure accuracy and 
 uniformity in the proceedings of the taxing officers. 
 
 889 
 
 on 
 or 
 
 447. 
 
 20. Any party who may be dissatisfied with the allowance 
 or disallowance by the taxing officer, in any bill of costs taxed 
 by him, of the whole or any part of any item or items, may, at 
 any time before the certificate or allocatur is signed, deliver to 
 the other party interested therein, and carry in before the tax- 
 ing officer, an objection in writing to such allowance or disal- 
 lowance, specifying therein by a list, in a short and concise 
 form, the item or items, or parts or part thereof, objected to, 
 and may thereupon apply to the taxing officer to review the 
 taxation in respect of the same. 
 
 See Eng. R. Sup. C. of Aug., 1875, "Costs," r. 30. 
 
 The following form is from Summerhays & Toogood's Precedents (2nd ed.) 
 p. 45 :— 
 
 In the High Court of Justice. 
 
 Division. 
 
 [Title of the cause or matter.] 
 
 Objections taken by the plaintiff [or defendant] to the taxation by 
 Esquire, one of the Taxing Masters of this Court, of the bill of costs of the plaintiff 
 [or defendant], under the judgment [or order] dated the day of 188 . 
 
 The plaintiff [or defendant] objects to the disallowance of the items in his bill of 
 costs mentioned in the 2nd and 3rd columns, hereunder written, for the following 
 reasons :— 
 
890 
 
 JUDICATURE ACT. 
 
 • li. 
 
 S'l 
 
 No. of 
 Objection. 
 
 Taae in 
 Bill. 
 
 No. of 
 Item. 
 
 1 
 
 1 
 
 ItoG 
 
 2 
 
 2 
 
 10 
 
 3 
 
 4 
 
 50 
 
 4 
 
 6 
 
 90 
 
 6 
 
 7 
 
 110 
 
 6 
 
 8 
 
 120 
 
 Reasons for Allowanob. 
 
 These items are properly chargeable under the 
 order which gives the ]>laintiil his costs, 
 charges, and expenses.. 
 
 The attendance was taken for the puriwse of 
 saving expense, and further exiiense wa» 
 thereby avoided. 
 
 This item is in accordance with the scale. 
 
 The inspection of docximents was necessary to 
 enable the nlaintiff to prepare his cause, and 
 he oljtaineu information as to [set this out] 
 which was of material assistance to him on the 
 trial. 
 
 The affidavit was necessary, and was used on the 
 hearing of the summons, and entered in the 
 order. 
 
 This item is in the discretion of the Master, and 
 under the special circumstances of the case 
 [gel out what these circumstances arc\ should be 
 allowed. 
 
 Dated this 
 
 day of 
 
 188 
 
 Yours, "tc. 
 
 To Mr. C. D., 
 
 Defendants Solicitor. 
 
 ' ti., 
 iff's Solicitor. 
 
 448. 
 
 21. Upon such application the taxing officer shall recon- 
 sider and review his taxation upon such objections, and he 
 may, if he shall think fit, receive further evidence in respect 
 thereof, and, if so required by either party, he shall state either 
 in his certificate of taxation or allocatur, or by reference ta 
 such objection, the grounds and reasons of his decision thereon, 
 and any special facts or ciicumstances relating thereto. 
 
 See Eng. R. Sup. C. of Aug., 1875, "Costs," 31. 
 
 449. 
 
 22. Any party who may be dissatisfied with the certificate 
 or allocatur of the taxing officer, as to any item or part of an 
 item which may have been objected to as aforesaid, may apply 
 to a Judge at Chambers for an order to review the taxation as 
 to the same item or part of an item, and the Judge may there- 
 upon make such order as to the Judge may seem just ; but the 
 
 Vl 
 
COSTS. 
 
 301 
 
 certificate or allocatur of the taxing officer shall be final and **• ■'• 
 conclusive as to all matters which shall not have been objected **' *"' 
 to in manner aforesaid. 
 
 See Eng. 11. Sup. C, of Aug, 1875, " Coate." 32. 
 
 Discretion of Taxing/ Officer— It has been said that the diHcretion of the Taxing 
 
 cally illustrated itft belief that itH own discretion was more nearly correct than that 
 of the Taxing Officer. The following casen mav be referred to om illustrating that 
 the Court will not as a general rule, except uuaer special circumatanceH, interfere 
 in a matter of diwcretion, Fenton v. Crickett, 3 Madd. 496 ; Clarke v. Tyne Improve- 
 ment Commissioners, L. 11. 3 C. P. 230 ; Tillet v. Stracey, L. R. H C. T. 185 ; 
 I'otter V. Rankin, L. R. 5 C. P. 518 ; Wakefield v. Brown, L. R. 9 C). P. 410 ; Par- 
 kinson V. Hanbury, 13 W. R. 1056 ; Cousens v. Cousens, L. R. 7 Ch. App. 48 ; 
 lietts V. Cleaver, J'j. 513 ; Hargreaves r. Scott, L. R. 4 C. P. D. 21 ; re Robertson, 
 24 6r. at pp. 5(i0, 562, ; and the following as a rule that mere quantum will not be 
 interfered with, re Congreve, 4 Beav. 87 ; Friend v. Solly, 10 Beav. 329 ; I'e Catlin, 
 18 Beav. 508; Turner v. Turner, 7 W. R. 573 ; re Hubbard, 23 Beivv. 481 ; Atty.- 
 (Jen. ?•. Draper's Co. L. R. 9 Eq. 69; but see Smith ;-. BuUer, L. R. 19 Eq. 473. 
 
 The items objected to mud he specified, re Congreve, 4 Beav. 87. If the items 
 objected to do not amount to £2, the appeal will not lie, Newton v. Boudle, L. 
 it. 4 C. B. 359 ; see also McQueen r. McQueen, 2 Ch. Ch. R. 344. 
 
 Costs of a pnyticular proceeding. — So much of a bill for an account against trus- 
 tees as charged fraud was dismissed with costs and accounts directed. The Master, 
 in taxing the defendant's costs, had refused to allow to the plaintiff any costs in 
 respect of the interrogatories, answer, or production of documents : — Held, that tlie 
 Master was not justified in disallowing these items, Heming v. Lelfchild, 9 W. li. 
 174. 
 
 Affltim-it of increase. — The Court refused to direct the taxing officer to adopt the 
 ]>ractice in the Queen's Bench Division of requiring the solicitor to make an "affi- 
 davit of increase," since evidence could be obtained, without such affidavit, of all 
 matters necessary for his information. But the Court declined to lay down any 
 rule that such aifidavit of increase should in no case be required, Smith v. Day, 
 L. R. 16 Ch. D. 726. 
 
 Revision after payment. — The bill of costs in a cause having been taxed by the 
 local Master, the plaintilT paid the amount taxed without protest : — Held, that he 
 still was entitled to a revision of taxation before the Master at Toronto, Kormann 
 /•. Tookey, 6 P. R. 112 ; and see Elliott v. Northern Assurance Company, 10 V. 
 C. L. J. N. S. 16. 
 
 Costa taxed under special statutes. — Where, under special statutes, costs are 
 directed to be taxed by one of the Masters, there can be no appeal from his 
 decision. Quwre, whetiier, if the Master imitroperly allow costs to one of the 
 parties where he is not entitled to them, or disallow them where the party is 
 entitled to them, the Court can interfere by certiorari or mandamus. In re The 
 Sheffield Waterworks Act. 1864, L. R. 1 Ex. 54; in the matter of an inquiry 
 between Edwin Owen and the London and North- Western Railway Company, L. 
 R. 3 Q. B. 64. 
 
 450. 
 
 23. Such application shall be heard and determined by the 
 Judge upon the evidence which shall have been brought in be- 
 fore the taxing officer, and no further evidence shall be received 
 upon the hearing thereof unless the Judge shall otherwise 
 direct. 
 
 See Eng. R. Sup. C. of Aug., 1875, "Costs," 33. 
 
 
Sl)2 
 
 JUDICATURE ACT. 
 
 ORDER LI. 
 Notices and Paper, &c. 
 
 ift 
 
 It ' 
 
 O. LI. 
 K. 1. 
 
 451. 
 
 1. All notices required by these Rules shall be in manuscript 
 or print, or partly in manuscript and partly in print, unless 
 expressly authorized by a Court or Judge to be given orally. 
 
 See Eng. R. Sup C, 0. LVI., r. 1. 
 
 Pleadings and all other proceedings in a cause may be written or printed, or 
 partly written and partly printed ; and where wholly printed, dates and sums occur- 
 ring therein are to be expressed by figures instead of words, G. O. Chy. No. 66. 
 
 ■■■] 
 
 453. 
 
 2. Proceedings, if printed, shall be printed with pica type, 
 leaded, on good paper, of foolscap size. 
 
 See Eng. R. Sup. C, O. LVI.,r. 2. 
 
 When the office copy of the bill served upon a defendant was not printed in 
 accordance with the order of Co>c',, the service was set aside with costs, Cossey v. 
 Ducklow, 2 Ch. Ch. R. 227. 
 
 453. 
 
 3. Any affidavit may be sworn to either in print or in manu • 
 script, or partly in print and partly in manuscript. 
 
 See Eng. R. Sup. C, O. LVI., r. 3. 
 
 ORDER LII. 
 
 O. Mi 
 B. 1. 
 
 Time. 
 454. 
 
 1. Where by these Rules, or by any judgment or order given 
 or made after the commencement of the Act, time for doing 
 any act Oi' taking any proceeding is limited by months, not 
 expressed to be lunar months, such time shall be jomputed by 
 calendar months. 
 
 See Eng. R. Sup. C, 0. LVII., r. 1. 
 
1 
 
 TIME. 
 
 455. 
 
 2. Where any limited time less than 6 days from or after o. i.ii. 
 any date or event is appointed or allowed for doing any act «• »• 
 or taking any proceeding, holidays, as defined by the Interpre- 
 tation Act, shall not be reckoned in the computation of such 
 limited time. 
 
 See Eng. R. Sup. C, O. LVIL, r. 2 ; R. S. 0., c. 1, s. 8, sub-s. 16 ; Reg.-Gen. 
 T. T. 1856, No. 146, Ont. 
 
 Where the limited period is not less than 6 days, Sundays are counted, Ex 
 parte Viney, W. N. (1877), p. 53 ; L. R. 4 Ch. D. 794. In such cases it is only when 
 the List day is Sunday that by rule 4 an extension is given. 
 
 Interpretation Act, — R. S. O., c. 1, s. 16, enacts as follows: The word "holiday" 
 shall include Sundays, New Year's Day, Good Friday, Easter Monday, and Christ- 
 mas Day, the days appointed for the celebration of the birth-day of Her Majesty 
 and of Her Royal Successors, and any day appointed by proclamation of the Gov- 
 ernor General or Lieutenant Governor as a public holiday, or for a general fast or 
 thanksgiving. 
 
 456. 
 
 3. In all cases in which any particular number of days not 
 expressed to be clear days, is prescribed by the Act or the 
 Orders or practice of the Court, the same shall be reckoned 
 exclusively of the first da.y, and inclusively of the last day. 
 
 6ee Eng R. No. 174 of Hilary Term, 1853. 
 
 This is a re-enactment of G. O. Chy. No. 407. Where the eight days wherein to 
 appeal from Chambers under Order XLVIII., r. 3, expires on a Sunday, the motion 
 may be made the next day, Taylor v. Jones, 45 L. J. C. P. 110. The day appointed 
 by the Master's report for the payment of money fell upon a Sunday; the Court 
 refused a final order of foreclosure, though the plaintiff attended at the same place, 
 and between the same hours, on the Saturday and Monday, Hulcomb v. Leach, 
 .3Gr. 449. 
 
 457. 
 
 4. Where the time for doing any act or taking any proceed- 
 ing expires on a Sunday, or other day on which the offices are 
 closed, and by reason thereof such act or proceeding cannot be 
 done or taken on that day, such act or proceeding shall, so far 
 as regards the time of doing or taking the same, be held to be 
 duly done or taken if done or taken on the day on which the 
 offices shall next be open. 
 
 See Eng. R. Sup. C, O. LVII., r. 3. 
 
 Where the time for appeal ends on a Sunday an application made on the day 
 following is sufficient, Taylor v. Jones, L. R. 1 C. P. D. 87. 
 
 An order which was a refusal of an api)lication, was made by the London Bank- 
 ruptcy Court on the 10th of jNIarch. An appeal was entered with the Registrar of 
 Appeals on the 4th of April, and on the same day notice was served on the respon- 
 dent. The Registrar's office had been entirely closed for the Easter vacation from 
 the 30th of March to the 3rd of April, both inclusive : — Held, that notwithstanding 
 the closing of the office, the notice of appeal might have been served on the 
 respondent, and that as it had not been served within twenty-one days the appeal 
 was too late. Ex parte Saffery, In re Lambert, L. R. 5 Ch. IJ. 305. 
 
 393 
 
 
394 
 
 JUDICATURE ACT. 
 
 hi 
 
 ! 
 
 458. 
 
 o. fill. 5. The time for delivering or amending any pleading may 
 
 B. s. be enlarged by consent in writing, without application to the 
 
 Court or a Judge. 
 
 See Eng. R. Sup. C, April, 1880, r. 42. 
 
 ■S'''i| 
 
 
 I'f •■. 
 
 459. 
 
 6. Service of pleadings, notices, summonses, orders, rules and 
 other proceedings shall be effected before the hour of 6 in 
 the afternoon, except on Saturdays, when it shall be effected 
 before t.he hour of 2 in the afternoon. Service effected after 
 G in the afternoon on any week day except Saturday 
 shall be deemed to have been effected on the following 
 day. Service effected after 2 in the afternoon on Saturday 
 shall be deemed to have been effected on the following Mon- 
 day. 
 
 See Eng. R. Sup. C, April, 1880, r. 43 ; Reg.-Gen. T. T., 1856, No. 135, Ont. ; 
 G. O. Chy, No8. 410, 411. 
 
 Service of a summons on Saturday afternoon after three o'clock, returnable on 
 Monday following, is not good service as being in effect service of a summons on 
 the day on which it is returnable, Ball v. Cowdley, 3 U. C. L. J. 131 ; and see 
 Connelly t. Bremner, L. R. 1 C. P. 557. 
 
 460. 
 
 7. No pleidinofs shall be amended or delivered in the long 
 vacation, except by consent or unless directed by the Court 
 or a Judge. 
 
 See Eng. R. Sup. C, O, LVII., r. •. ; R. S. 0., c. 50, s. 95. 
 
 461. 
 
 8. The time of the long vacation shall not be reckoned in the 
 computation of the times appointed or allowed by these Rules 
 for filing, amending, or delivering any pleading, or in the times 
 allowed for other purposes for which the same is not reckoned 
 by the practice of the Courts consolidated by the Act, ur any 
 or either of them, or for the like proceedings substituted by 
 the Act, or these Rules ; unless otherwise directed by a Court 
 or a Judge. 
 
 See Eng. R. Sup. C, O. LVII., r. 5 ; G. O. Chy. No. 408 ; R. S. O., c. 50, s. 9.->. 
 
 No declaration or pleading after declaraticm shall be filed or served between the 
 first day of July ana the twenty -first day of August in any year, and the parties 
 respectively in any case shall be entitled to the same number of days after the 
 
I 
 
 TIME. 
 
 395 
 
 t\ "'•/-firsi day of August to plead to or answer any pleading filed or delivered before O. Eill. 
 the urst day of July, to which they would have been entitled had this provision not r. s. 
 been made, !H< S. O., c. 50, s. 95. 
 
 The time for vacation is not to be reckoned in the computation of the times ap- 
 pointed or allowed for the following purposes :— (1) Answering either an original or 
 amended bill ; (2) Amending or obtaining orders for leave to amend bills ; (3) Set- 
 ing down demurrers; (4) Filing replications, or setting down causes under the 
 directions of Orders 152, 153, 154, 155; (5) Master's reports becoming absolute ; (6) 
 Moving to discharge an order of revivor ; (7) Moving to add to, vary or set aside 
 a deree by any party served therewith, G. O. Chy. No. 408. 
 
 463. 
 
 9. A Court or a Judge shall have power to enlarge or abridge 
 the time appointed by these Rules, or fixed by any order enlarg- 
 ing time, for doing any act or taking any proceeding, upon such 
 terms (if any) as the justice of the case may require ; and any 
 such enlargement may be ordered although the application for 
 the same is not made until after the expiration of the time 
 appointed or allowed. 
 
 See Eng. R. Sup. C, O. LVII., r. o. 
 
 The Court has no power under thi? rule to extend the time for renewing a writ 
 of summons, where the claim would, in the absence v.:' renewal, be barred by the 
 Statute of Limitations, Doyle v. Kaufman, L. R. 3 Q. B. D. 340 ; but secus in 
 other cases, ve Jones, Eyre v. Cox, 46 L. J. Chy. 316. The time for serving a state- 
 ment of claim may be extended, even after 3xpiration of time for delivery and 
 where the statute «• iild otherwise extinguish the right, Canadian Oil Works v. 
 Hay, W. (1878) 107. "his rule does not empower the Judge before whom an action 
 was tried to grant an application as to costs which, by Ord. L., r. 1, if made to the 
 Judge must be made at the trial, Baker v. Oakes, L. R. 2 Q. B. D. 171 ; see also 
 Welply V. Buhl, W. N. (1878) p. 6; Whistler v. Hancock, lb., and see notes to O. 
 L., r. 1. The Court or a Judge has power to enlarge the time limited by an order 
 of the Master for doing an act, even after the expiration of the time so limited and 
 a lapse of the four days for appealing, where the justice of the case retiuires it, 
 liurke ?'. Rooney, L. R. 4 C. P. D. 226 ; and see Gibbons r. The London 1 inancial 
 Association, L. R. 4 C. P. D. 263. An ai)plication for leave to join another action 
 with an action for recovery of land, must be made before the writ is issued, and 
 this rule does not apply to such a case so as to enable the Court to extend the time 
 for making such an application, re Pilcher, Pilcher v. Hinds, L, R. 11 Ch. D. 905. 
 
 The Court has power to extend the time for making an indorsement on a writ 
 of the date of service, Hastings v. Hurley, L. R. 16 Ch. I). 734. 
 
 Slip of Solid t<y)'. — See cases collected in notes to sec. 38 of the Act; and CoUiios 
 V. The Vestry of Paddington, 49 L. J. C. L. 612. 
 
 For form of order enlarging time, see Forms, No, 114. 
 
 463. 
 
 10. The costs of an application to extend the time for taking 
 any proceeding shall, in the absence of an order by the Court 
 or a Judge directing by whom they are to be paid, be in the 
 discretion of the taxing master. 
 
 See Eng. R. Sup. C, April, 1880, r. 65. 
 
 At law a second application for time to plead might be allowed, see Tariff 
 of Costs. 
 
 3 
 
 ■m 
 
 m 
 
396 
 
 JUDICATUKE ACT. 
 
 ORDER LIII. 
 
 Affidavits. 
 
 ••*<. 
 
 O. lilll. 
 K.1. 
 
 464. 
 
 1. Every affidavit shall be drawn up in the first person, and 
 shall be divided into paragraphs, and every paragraph shall be- 
 numbered consecutively, and as nearly as may be shall be con- 
 fined to a distinct portion of the subject. Every affidavit shall 
 be written or printed. No costs shall be allowed for any 
 affidavit or part of an affidavit substantially departing 
 from this rule. 
 
 
 i '!l 
 
 See Eng. R. Sup. C, April, 1880, r. 12; G. O, Chy. No3. 68, 258 ; Reg. Gen. 
 T. T. 1856, No. 112, Ont. 
 
 Every affidavit should be intituled in the cause or matter in w^hich it is matle, 
 and contain the true place of residence, description, and addition of the depon mt, 
 and great care should be taken that the names of parties are accurately set forth, 
 Solomon v. Stalman, 4 Beav. 243 ; May v. Prinsep, 11 Jur. 10.i2 ; but see Haws r. 
 Bamford, 9 Sim. 653 ; Pearson v. Wilcox, 10 Ha. app. 35. 
 
 Affidavits sworn abroad in the third person received as evidence, re Husband, 
 12 L. T. N. S. 303 ; Dryden v. Frost, 8 Sim. 380 : and triflinp; irregularities have 
 been overlooked, see Gates v. Buckland, 13 W. K. 67 ; Mack v. Ward, 10 Ha. 
 app. 1 ; but the signature cannot be dispensed with, Anderson v. Stather, 9 Jui'. 
 1085 ; nor the words "make oath," Phillips v. Prentice, 2 Ha. 542 : re Newton, 
 2 D. F. & J. 3. 
 
 465. 
 
 2. Every affidavit shall state the description and true place 
 of abode of the deponent, and shall be signed by him. 
 
 See Eng. R. Sup. C, April, 1880 ; Reg. Gen. T. T. 1856, No. 109, Ont. 
 
 As to additions which have been held sufficient, see Harrison's C. L. P. A. 
 (2 ed.) 678. It has been held that parties to the cause may describe themselves 
 as the above named plaintiff or defendant, without specifying any residence, ad- 
 dition, or other description, Crockett v. Bishton, 2 Mad. 446. 
 
 466. 
 
 3. In every affidavit made by two or more deponents the 
 names of the several persons making the affidavit shall be in- 
 serted in the jurat, except that if the affidavit of all the 
 deponents is taken at one time by the same officer, it shall be 
 sufficient to state that it was sworn by both (or all) of the 
 " above-named " deponents. 
 
 See Eng. R. Sui;, C, April, 1880, r. 14; Reg. Gen, T. T. 1856, No. 110, Ont. 
 
 
AFFIDAVITS. 
 
 397 
 
 467. 
 
 4. There shall be appended to or indorsed upon every affi- ®* ^*"* 
 davit a note shewing on whose behalf it is filed. 
 See Eng. R. Sup. C, April, 1880, r. 15. 
 
 R. 4. 
 
 468. 
 
 5. No affidavit having in the jurat or body thereof any inter- 
 lineation, alteration, or erasure shall without leave of the Court 
 or a Judge be read or made use of in any matter pending in 
 Court unless the interlineation or alteration (other than by 
 erasure) is authenticated by the initials of the officer taking 
 the affidavit ; nor in the casG( of an erasure, unless the words 
 or figures appearing at the time of taking the affidavit to be 
 written on the erasure are rewritten, and signed or initialed in 
 the margin of the affidavit by the officer taking it. 
 
 See Eng. R. Sup. C, April, 1880, r. 16 ; Reg. Geu. T. T. 1856, No. Ill, Ont.; 
 G. O. Chy. No. 131. 
 
 A line drawn through words, though leavvngthera perfectly legible, is an erasure, 
 WilUams v. Clough, 1 A. & E. 376. 
 
 469. 
 
 6. Where an affidavit is sworn by any person who appears 
 to the officer taking the affidavit to be illiterate, the officer shall 
 certify in the jurat that the affidavit was read in his presence 
 to the deponent, that the deponent seemed perfectly to under- 
 stand it, and that the deponent made his or her signature in 
 the presence of the officer. No such affidavit shall be used in 
 evidence in the absence of this certificate, unless the Court or a 
 Judge is otherwise satisfied that the affidavit was read over to 
 and apparently perfectly understood by the deponent. 
 
 See Eng. R. Sup. C, April, 180, r. 17 ; Reg. Gen. T. T. 1856, No. 113, Ont. 
 
 The form of the jurat in such case' may be as follows:— Sworn before me at the 
 of in the County of this day of 18 , having 
 
 been first read over in my presence to the said who seemed perfectly to 
 
 understand the same and who made signature thereto in my presence. 
 
 470. 
 
 7. In cases in which by *;he present practic3 an original affi- 
 davit is allowed to be used, it shall before it is used be stamped 
 with a proper filing stamp, and shall at the time when it is 
 used, be delivered to and left with the proper officer in Court 
 or in Chambers. An office copy of an affidavit may in all cases 
 be used, the original affidavit having been previously filed in 
 the proper office, arid the copy duly authenticated with the 
 seal of that office. 
 
 See Eng. R. Sup. C, April, 1880, r. 18. 
 
 9 
 
 m 
 
 ;i 
 
 It 
 
 \a%^ 
 
398 
 
 JUDICATURE ACT. 
 
 R. I. 
 
 U 1: 
 
 ORDER LIV. 
 Divisional and other Courts. 
 
 471. 
 
 1. The following proceedings and matters shall be heard and 
 determined before the Divisional Courts ; but nothing herein 
 contained shall be construed so as to take away or limit the 
 power of a single Judge to hear and determine any such pro- 
 ceedings or matters in any case in which he has heretofore had 
 power to do so, or so as to require any interlocutory proceed- 
 ing therein, heretofore taken before a single Judge to be taken 
 before a Divisional Court : 
 
 See Eng. R. Sup. C, Dec. 1876, r. 8. 
 
 Appeals from orders of a Judge in Chambers. 
 
 Proceedings directed by any Statute to be taken before 
 the Court, and in which the decision of the Court is finaJ. 
 
 Cases of Habeas Corpus, in which a Judge directs that a 
 rule nisi for the writ, or the writ, be made returnable 
 before a Divisional Court. 
 
 Other cases where all parties agree that the same be heard 
 before a Divisional Court. 
 
 Applications for new trials in the said Divisions where the 
 action has been tried with a jury. 
 
 473. 
 
 2. Bills of exceptions and proceedings in error shall be 
 abolished. . 
 
 See Eng. R. Sup. C, 0. LVIII., r. 1. 
 
 O. L.V. 
 R. 1. 
 
 ORDER LV. 
 
 Effect of Non-compliance and Errors. 
 
 473. 
 
 1. Non-compliance with any of these Rules shall not render 
 the proceedings in any action void unless the Court or a Judge 
 shall so direct, but such proceedings may be set aside either 
 wholly or in part as irregular, or amended, or otherwise dealt 
 
NON-COMPLIANCE AND ERRORS. 
 
 399 
 
 '■M 
 
 with in such manner and upon such terms as the Court or **• ^^' 
 Judge shall think fit. "• *• 
 
 See Eng. R. Sup. C, O. LIX. 
 
 " Court or a Judge" — See notes to 0. IV., r. 1 (a). 
 
 474. 
 
 2. The Court or a Judge may at any time, and on such terms 
 as to costs or otherwise as to the Court or Judge may seem just, 
 amend any defect or error in any proceedings ; and all such 
 amendments may be made as may be necessary for the advance- 
 ment of justice, determining the real question or issue raised by 
 or depending on the proceedings, and best calculated to secure 
 the giving of judgment according to the very right and justice 
 of the case. 
 
 See Eng. R. Sup. C, April, 1880, r, 44 ; R. S. C, c. 49, ss. 7, 8 ; c. 50, s. 270. 
 See also as to amendments, O. XII., rr. 2, 15 ; O. XXIII., r. 1. 
 
 ORDER LVI. 
 
 Accountant's Office. 
 
 475. 
 
 1. The Suitors' Accounts in the Queen's Bench, Common <*• *''''■• 
 Pleas.and Chancery, shall be consolidated, and shall be in charge "' '* 
 of an officer to be called the Accountant of the Supreme Court. 
 
 476. 
 
 2. Section 121 of the Common Law Procedure Act shall 
 apply to the said accounts, and shall be read as if the words 
 "Accountant of the Supreme Court" were substituted for the 
 ^vord "clerk" wherever the word "clerk" occurs in the said 
 section. 
 
 477. 
 
 3. Money is to be paid out of Court upon the cheque of the 
 Accountant, countersigned by any of the following officers, viz.: 
 one of the Clerks of the Crown and Pleas or the Registrar. 
 
 See R. S. 0., c. .50, s. 121 ; G. O. Chy. Xo. 627. 
 
 " The Begiatrcr." — This caniiot be the Registrar of the Court of Chancery, for by 
 rule 5 of this Order he is to be the Accountant of the Supreme Court, and yet there 
 is no other officer known by that title. 
 

 
 
 400 
 
 B. 4. 
 
 JUDICATURE ACT. 
 
 478. 
 
 4. Every cheque is to be initialed by the chief Clerk in the 
 Accountant's office before the same is presented for the signa- 
 ture of the Accountant or other officer. 
 
 See G. O. Chy. Noa. 352, 372, 627. 
 
 479. 
 
 5. The Registrar of the Court of Chancery shall act as, 
 and shall be, Accountant of the Supreme Court until and unless 
 some other person is appointed Accountant of the Supreme 
 Court. 
 
 »4 
 
 fll 
 
 O. I.VII. 
 B. 1. 
 
 ORDER LVII. 
 Sittings and Vacations. 
 
 480. 
 
 1. The sittings of the Higrh Court of Justice shall be three in 
 every year, viz., the Michaelmas sittings, the Hilary sittings, 
 and the Easter sittings ; 
 
 (a) The Michaelmas sittings shall begin on the third Mondaj' 
 in November, and end on the Saturday of the second week there- 
 after ; the Hilary sittings shall begin on the first Monday in 
 February and end on the Saturday of the following week ; the 
 Easter sittings shall begin on the third Monday in May and 
 end on the Saturday of the second week thereafter 
 
 See Eng. R. Sup. C, O. LXL, r. 1 ; R. S. O., c. 39, s. 11. 
 
 (b) In case it appears to the Judges of the said Court, or a 
 majority of them, that the number of days so provided 
 for holding any sittings is not required, or is insufficient, 
 
 \ for the due despatch of the business to be transacted by the 
 Court in such sittings, such Judges may from time to time, by 
 rule or order, shorten the period for holding the sittings to 
 such period, not less than two weeks, or increase the length of 
 the same to any period, as the case may require; 
 
 SeeR. S. 0.,c. 39,8. 12. 
 
 (c) The preceding provisions of this Order are not to apply 
 to the Chancery Division except when the Judges thereof shaii 
 
SITTINGS AND VACATIONS. 
 
 401 
 
 be of opinion that the business of the said Division is such as to •• ^^**- 
 render the said provisions necessary or convenient for the due "* '* 
 despatch of business, and shall give notice to that effect ; 
 
 (d) Divisional Courts of the High Court are to sit at such 
 further or other times as may be directed by the High Court or 
 as may be necessary for the due despatch of business. 
 
 481. 
 
 2. One or more of the Judges of the High Court shall be 
 selected at the commencement of each Long Vacation, for the 
 hearing in Toronto during vacation of all such applications as 
 may require to be immediately or promptly heard. Such 
 Judge or Judges shall act as vacation Judge or Judges for one 
 year from appointment. In the absence of arrangement be- 
 tween the Judges, the vacation Judge or Judges shall be the 
 Judge or Judges last appointed (whether as Judge or Judges 
 of the said High Court or of any Court whose jurisdiction is 
 by the Act vested in the said High Court) who have not 
 already served as vacation Judges of any such Court; and 
 if there shall not be any Judge or Judges for the time being 
 of the said High Court who shall not have so served, then the 
 vacation Judge or Judges shall be the Judge or Judges 
 (if any) who has or have not so served and the senior Judge 
 or Judges who has or have so served once only according to 
 seniority of appointment whether in the said High Court or 
 such other Court as aforesaid. 
 
 See Eng. E. Sup. C, Feb. 1876, r. 9. 
 
 By sec. 20 of the Act, the Lieutenant-Governor in Council may from time to 
 time, upon any report or recommendation of the Council of Judges of the Supreme 
 Court hereinafter mentioned, make, revoke, or modify orders regulating the vaca- 
 tions to be observed by the High Court of Justice and the Court of Appeal, and 
 in the oflBces of the said Courts respectively ; and any order in Council made 
 pursuant to this section shall, so long as it continues in force, be of the same effect 
 as if it were contained in this Act ; and Rules of Court may be made for carrying 
 the same into effect in the same manner as if such Order in Council were part of 
 this Act. 
 
 ! 
 
 J: i 
 
 483. 
 
 3. The vacation Judges may sit either separately, or together 
 as a Divisional Court, as occasion shall require, and may hear 
 and dispose of all actions, matters, and other business to which- 
 ever Division the same may be assigned. No order made by 
 a vacation Judge shall be reversed or varied except by a 
 Divisional Court or the Court of Appeal, or the Judge who 
 26 
 
■«r.;;,i'i 
 
 402 
 
 O. liFII. 
 B. 3. 
 
 JUDICATURE ACT. ^ 
 
 made the order. Any other Judge of the High Court may sit 
 in vacation for any vacation Judge. 
 
 SeeEng. R. Sup. 0., O. LXI., r. 6. 
 
 As to what in vacation business, see re Wigan Junction Railways Act, L. H. 10 
 Ch. 641. 
 
 Where an application ought to be made before a Court which has risen any 
 Jud^e who is sitting may hear it, Price v. (Gardner, 1 Jur. N. S. 975. The juris- 
 diction of the vacation Judge to hear applications in causes pending in any of the 
 Courts commences when that Court rises for the vacation, though it may have 
 risen before the time provided for the commencement of the vacatioii, Francis v. 
 Browne, 10 W. R. 811 ; HoUoway v. Phillips, 22 L. J. N. S. Chy. 1001; and see 
 Bean v. Griffith, 1 Jur. N. S. 1045. 
 
 483. 
 
 4. The vacation Judges of the High Court may dispose of all 
 actions, matters, and other business of an urgent nature during 
 any interval between the sittings of any Division of the High 
 Court to which such business may be assigned, although such 
 interval may not be called or known as a vacation. 
 
 See Eng. R. Sup. C, O. LXI., r. 7. 
 
 As to proceedings to be taken before a Divisional Court, see 0. LIV. 
 
 -;'i, 1. 
 
 m \\ .5 
 
 nv 
 
 Htl 
 
 ii m^ 
 
 O. £.¥111. 
 R. 1. 
 
 ORDER LVIII. 
 Exceptions from the Rules. 
 
 484. 
 
 Nothing in these Rules shall be construed as intended to 
 affect the practice or procedure in criminal proceedings, or 
 proceedings on the Crown or Revenue side of the Queen's 
 Bench or Common Pleas Divisions. 
 
 See Eng. R. Sup. C, 0. LXIL; K. S. 0., c. 39, s. 4. 
 
 li- 
 
 i ! 
 
 if 
 
 O. I.IX. 
 B. 1. 
 
 ORDER LIX. 
 Forms. 
 
 485. 
 
 The forms contained in the Appendices hereto are to be used 
 with such variations or modifications as circumstances may 
 require. 
 
 See Eng, R. Sup. C, April, 1880, r. 52. 
 
 m 
 
COUNTY COURTS. 
 
 403 
 
 I .' J 1,1 
 
 ORDER LX. 
 
 County Courts. 
 
 486. 
 
 1. The County Court terms are abolished. There shall he **• *'^- 
 sittings of the said Court at and for the same periods as the "• '• 
 said terms. 
 
 487. 
 
 2. The sittings of the County Courts now required to be 
 held on the first Monday in April and October in each year, 
 for disposing of cases without the intervention of a jury, shall 
 after the passing of this Act commence on the first Tuesday 
 instead of the first Monday in each of the said months. 
 
 '! i 
 
 See R. S. 0., c. 43, a. 4. 
 
 488. 
 
 3. Subject to Rules of Court, the Judges of the County 
 Court shall also have power to sit and act at any time for the 
 transaction of any ])art of the business of such courts, or for 
 the discharge of any duty which by any statute or otherwise 
 is required to be discharged out of or during term. 
 
 489. 
 
 4. In all actions, suits or other proceedings brought in any 
 County or Division Court in Ontario, in which the plaintiff 
 fails to recover judgment by reason of such Court having no 
 jurisdiction over the subject matter thereof, the said County 
 Court, or the Judge presiding in the said Division Court, as 
 the case may be, shall have jurisdiction over the costs of such 
 action, suit or other proceeding, and may order by and to whom 
 the same shall be paid, and the recovery of the costs so ordered 
 to be paid may be enforced by the same remedies as the costs 
 in actions, suits or proceedings within the proper competence 
 of the said Courts respectively are recoverable. 
 
 490. 
 
 5. Subject to the provisions of this Act, and to Rules of 
 Court, the pleadings, practice and procedure for the time being 
 of the High Court of Justice shall apply and extend to the 
 County Courts, wherever the present pleadings, practice and 
 procedure of the County Courts correspond with those of the 
 Superior Courts of Law. 
 
 0. XXXI., r. 11, is expressly mftd? applicable to the County Courts. 
 
 ^Hr 
 
404 
 
 JUDICATURE ACT. 
 
 ORDER LXI. 
 Interpretation, 
 
 ^in 
 
 Jl^liiiii 
 
 #;:ti!iiii 
 
 «"" 
 
 '* ■£• 
 
 ;•-!;;;; 
 ••*'" 
 
 O. liXI. 
 B. 1. 
 
 491. 
 
 1. A " Judge " in the preceding Order3 means a Judge of the 
 Supreme Court, or a Judge having the authority for the time 
 being of a Judge of the High Court, unless there is something 
 in the context indicating a different meaning. 
 
 493. 
 
 2. Any Rule of the several Orders in this schedule may be 
 cited by the marginal number of the Rule, or by the number of 
 the Order, and of the Rule as it stands in such Order. 
 
 "A Judge."— Bee notes to O. IV., r. 1 (a). 
 
 ORDER LXII. 
 Pending Business. 
 
 ill 
 
 
 ' ! 
 
 O. tiXII. 
 B. 1. 
 
 493. 
 
 1. With respect to pending business in the Queen's Bench and 
 Common Pleas Divisions, the procedure is to be as follows : — 
 (1) Where no declaration has been delivered, the action shall 
 be continued according to the ordinary course of the High Court 
 of Justice, as if it had been commenced in that Court. (2) In 
 all other cases the action shall be continued up to the close of 
 the pleadings according to the practice of the Court in which 
 it was brought, and afterwards according to the provisions of 
 the Act ; subject, however, to an order, at the instance of either 
 party, to proceed at any stage according to the provisions of 
 the Act. 
 
 494. 
 
 2. With respect to pending business in the Court of Chancery, 
 subject to any special order which may be made in any cause, 
 matter or proceeding pending at the commencement of the Act, 
 the procedure is to be as follows : — All causes, matters, and 
 proceedings, except causes in which neither notice of mo- 
 tion for a decree has been served, nor replication been filed, 
 
PENDING BUSINESS. 
 
 405 
 
 before the said time shall, so far as relates to the form and •• 
 manner of procedure, be continued and concluded in the same *' 
 manner as they would have been in the Court of Chancery ; 
 
 (a) All such pending causes in which, up to the commence- 
 ment of the Act, no notice of motion for a decree has been served 
 or replication filed, shall be continued in the same manner as 
 they would have been continued in the Court of Chancery up to 
 the time at which such notice of motion or replication could 
 have been served or filed, and shall from that period be con- 
 tinued according to the ordinary course of the High Court oi 
 Justice ; 
 
 See notice of Nov. 2, 1875, W. N. (1875), pt. II., p. 469 ; notice of Nov. 3, 1875, 
 W. N. (1875), pt. II., p. 468. 
 
 See notes to b. 11 of the Act. 
 
 Where no petition of appeal from a decree has been presented before the Judi- 
 cature Act came into operation, an appellant must proceed under the new practice, 
 Bartlam v. Yates, L. R. 1 Ch. D. 13. 
 
 Where a suit in Chancery was brought to an issue on replication, filed and 
 heard under the old practice, it was held that the appeal must be regulated by the 
 new practice, and the bill having been dismissed, the time for appealing was calcu- 
 lated from the pronouncing of the decree, Intematicnal Financial Society v. City of 
 Moscow Gas Co., City of Moscow Gas Co. v. International Financial Society, L. R. 
 7 Ch. D. 241. 
 
 Default in answering in a pending suit is not "default in delivering a defence," 
 80 as to entitle the plaintiff to set down the action on motion for judgment, CuUey 
 V. Buttifant, L. R. 1 Ch. D. 84. 
 
 Where a defendant in a pending suit had failed to enter an appearance or put in 
 an answer : —Held, that the cause should proceed for all purposes as if it were the 
 plaintiff's statement of claim, so that the plaintiff might proceed under O. XIII., 
 r. 9, and 0. XXIX., r. 10 (neither of which is in force, however, in Ontario), (Cul- 
 ley V. Buttifant distinguished). Provident Permanent Building Society v. Green- 
 hill, L. R. 1 Ch. D. 624. 
 
 (6) Any party to a pending cause may apply in chambers 
 that, for special reasons, a direction may be given for continuing 
 such cause according to the ordinary course of the High Court 
 of Justice. 
 
 I.XII. 
 
 ii. 
 
 \l Pi 
 
H*>i| 
 
 n\ 
 
 lllii 
 
 »>;7<iiiiii 
 
 IZ">'" 111. 
 ''■I.;!;; , 
 
 ."< 
 
 
 
 
PART II. 
 
 APPENDICES TO THE FOREGOING RULES. 
 
. r 
 
 !. : 
 
 
 ' "III 
 ._ ' ''111 
 
 5!!!!IIH||; 
 
 *'si;: ;"■■ 
 *,^; ijiii 
 
 id*'*'*' '». , 
 
 tl»:!;.;;;; 
 
 v;;;,iii 
 
 i,'..:jii 
 
 Ij.ill i 
 
 'ii»» 
 
 •• •. 
 
 n 
 
 \ s 
 
 
 ■.i \ 
 
[11 
 
 APPENDICES TO THE FOKEGOING RULES. 
 
 APPENDIX (A). 
 
 PART I. 
 
 FOAMS OF WRITS OF SUMMONS, AND NOTICE IN LIEU 
 
 OF SUMMONS. 
 
 No. 1. 
 
 GciwnU Farm of fVrit of Summons.— O. 11. 
 
 Ill the High Court of Justice. 
 Divisi( n. 
 
 Betweea A. J}. Plaintiff, 
 
 and 
 C. D. and F.F. Defendants. 
 
 Victoria, by the Grace of God, tOc. 
 
 To CD. of in the county of and F.F. of 
 
 We conunand you, That witbin ten days after the service of this writ 
 on you, inclusive of the day of such tiervice, you cause an appearance to 
 be entered for you in an action at the suit of A.B.; and take notice 
 that in default of your so doing the plaintitl' may proceed therein, and 
 judgment may be given in your absence. Witness, the Honourable 
 
 President, cL-c. 
 
 Memoramhu:% to be ':uoscribed ou th.: writ. 
 
 N.K— This writ is to be served within 12 cal.ndar inont]i.s from 
 the date thereof, or if renewed; within /:.' calendar 
 months from the date of such removal, including the day 
 of .^iich date, and not afterwards. 
 
 The defendant [or difcH'hintx] may appear boreto by entering an 
 ap[)earaiice [or ajj^jttt/couc.s] either personally or by solici- 
 tor at the [ ] olfice at 
 
 ladorisemeids to be moilc on ilie urit. 
 
 The plaintiff's claim is for, (tc. 
 
 IVIuri; the writ /.s to hr .■:}>ii-lallij indor.-iid ddd : — The following are the 
 particulars :- (diriny 'hrm. .Sec Part II. past.) 
 
 This writ was issueil by F.F., of solicitor for the said i)laintiff, 
 
 who resides at , or, tliis wi'it was issued by the [)laintiirin jiersmi 
 
 who resides at [niintiui'j the rilii, totrn, or (nwitxlii/., iind dlsi, the 
 
 iiaiiir of fhr drcct aii,d nundter <>f tlw lum^'' of (hr jilaintlji"^ rcnidciia;, 
 i} uttij, or ill, cutsc oj a township, the iitiinbtr of the lot and conrestnon.] 
 A 
 
[2] 
 
 JUDICATURE ACT — FORMS. 
 
 
 'ril!!!:. 
 
 Ill III 
 
 
 II In 
 
 :iiii 
 
 Indorsement to be made on the writ after semce tlwreof. 
 
 This writ was served hy X.Y. on CD. [the defendant o/' one of the 
 defendants], on Monday, the day of , 18 . 
 
 (Signed) 
 
 X.Y. 
 
 No. 3. 
 
 Writ for service out of Ontario or where notice in lieu of service is to he given 
 
 out of Ontario. — O. II. 
 
 In the High Court of Justice. Between /I. J5., Plaintiff, 
 
 Division. and 
 
 CD. and E.F. Defendants. 
 
 Victoria, by the grace of God, <fcc. 
 To a D., of 
 
 We command you C D. , that within {here inscH the number of days 
 directed by Order II., or as the. case may 6eJ after the service, on you, of 
 this writ and of thj plaintiff's statement of claim delivered herewith, 
 \or notice of this ur.it as the case may 6c], inclusive of the day of such 
 service, you cause an appearance to be entered for you in an action at the 
 suit of A.B., and your defence thereto, if any, to bb delivered ; and take 
 notice that in default of your so doing the plaintitl' may proceed therein, 
 and judgment may be given in your absence. 
 
 Witness, the Honourable President, d:c. 
 
 Memo7'andum and indorsements as in Form No. 1, 
 
 Indorseinent to be made on the lorit. 
 
 N.B. — This writ is to be used where the defendant or all the defendants or 
 one or more defendant or defendants is or are out of Ontario. When 
 the defendant to be served is not a British subject, and is not in British 
 dominions notice of the writ, and not the writ itself, is to be served upon 
 him. 
 
 Indorseinent to bo made on the writ after aerolce thereof : 
 
 This uolice was served by X. ¥., on G. II., (thu defendant or one of the 
 defendants) on the day of 18 
 
 Indorsed the day of 18 
 
 (Signed) 
 (Address) 
 
 No. 3. 
 
 Notice of writ t in lieu of service, to he yiven out oj Ontario. — O. II., r. 4. 
 
 In the High Oourt of Justice. 
 
 "" Between A. B. Plaintiff, 
 
 -Division. 
 
 and 
 
 CD., E.F.,Aiu\G.ll., Defendants. 
 To G.ii., of 
 
 Take Jiotice that A.B., of has commenced 
 
 an action against you, O.Jl., in tlio Division of Her Majesty's High 
 
 C lurt of Justice in Ontario, by writ of that Court, datod the 
 
WRITS OP SUMMONS. 
 
 [3] 
 
 day of , A.D. 18 ; which writ is indorsed as follows [copi/ in 
 
 full the indorsemods], and you are re(i[uired within [ ] days after 
 
 the receipt of this notice, inclusive of the day of such receipt, to defend 
 the said action, by causing an appearance to be entered for you in tlie 
 said Court to the said action, and your defence thereto, if any, to be 
 delivered ; and in default of your so doing, the said A.B., may proceed 
 therein, and judgment may be given, in your absence. 
 
 You may appear to the said writ by entering an appearance personally 
 or by your solicitor at the [ ] ofhce at 
 
 Dated, cfcc. 
 
 (Signed; 
 
 A.B., of 
 
 due. 
 
 or 
 
 X. Y. , of &c. 
 
 Solicitor for A . B. 
 
 N.B. — This notice is to be used when the person to be served is not a 
 British subject, and is not in British dominions. 
 
 Indorsement to he made on the writ after service thereof : 
 
 This notice was served by X. Y., on G. TI., (the defendant or one of the 
 defendants) on the day of 18 
 
 Indorsed the day of 18 . 
 
 (Signed) 
 (Address) 
 
 PART JI. 
 
 Indorsements on Writs of Summons. 
 No. 4. SECTION I. 
 
 Money Claims lohere no Special Indorsement under Order III. , Hide 4. — 
 See 3. II., r. 1; O. III., rr. 1, 2. 
 
 The plaintiffs claim is $ for the price of goods sold. 
 
 Tlds Fai^m slmll suffice lohether the claim be in respect of yoods sold and 
 delivered, or of goods bargained and sold. 
 
 The plaintiffs claim is $ for money lent [and interest]. 
 
 The plaintiffs claim ia $ whereof $ is for the price of goods 
 
 sold, and $ for money lent, and $ for interest. 
 
 Gooda Hold. 
 
 The plaintiffs claim is $ 
 The plaintiffs claim is | 
 case may be] . 
 The plahitiff s claim is $ 
 The plaintiffs claim is $ 
 
 The plaintiffs claim is $ 
 The plaintiif s claim is $ 
 The plaintiffs claim is $ 
 The plaintiffs claim is $ 
 
 toria, chap. [ . . . 
 The plaintiffs claim is $ 
 
 as a banker. 
 The plaintiffs claim is $ 
 
 expended] as a solicitor. 
 
 for arrears of rent. 
 
 for arrears of salary as a clerk [or as the 
 
 for interest upon money lent. 
 
 for a general average contribution. 
 
 for freight and demurrage. 
 
 for lighterage. 
 
 for market tolls and stallage. 
 
 for penalties under the Statute Vic- 
 
 for money deposited with th- defendant 
 
 for fees for work dout. j_;.,nd $ lacniey 
 
 Money lent. 
 Sevenil de- 
 mands. 
 Rent. 
 Sahiry, &c. 
 
 Interest, 
 (lenural 
 average. 
 
 reight, &c. 
 
 oIIh. 
 Penalties. 
 
 Banker H 
 balance. 
 
 Fees, &c., as 
 solicituri:). 
 
[4] 
 
 J UDlCATUllE ACT — FORMS. 
 
 ; :"" 
 
 « 
 
 * 
 '» 
 
 r 
 
 ,»* 
 
 .fill 1. 1 
 
 
 •I'. 
 
 It- 
 
 y.' 
 
 "* .. , .1' 
 
 
 Commi.ssion. 
 
 Medical at- 
 teiulaiice, &c. 
 lleturn of 
 premium. 
 Warehouse 
 rent. 
 
 Carriage of 
 gooda. 
 
 Use and occu- 
 pation of 
 house. 
 
 lit"' 
 
 Hire of goods 
 
 'ill 
 
 Work done. 
 
 iiini 
 
 Board and 
 
 
 lodging. 
 
 
 
 Schooling. 
 
 
 
 
 Money re- 
 
 iir 
 
 111) 
 
 ceived. 
 
 3<'ees of office. 
 
 The plaintitf a claim ia % 
 auctioneer, bruker, tC'c] 
 
 The plaintifTs claim is $ 
 
 Tlio plaintilFs claim is f 
 policies of insurance 
 The plaiutiU"'s claim is $ 
 
 The plaintiffs claim is | 
 The plaiutiif s claim is $ 
 
 The plaintiffs claim ia $ 
 The plaintiifa claim is $ 
 The plaintiffs claim ia ^ 
 
 for commission as [^tatii character as 
 
 ioY medical attendance. 
 
 for a return of premiums paid upon 
 
 for the warehousing of goods. 
 
 for the carriage of goods by railway. 
 
 fur the use and occupation of a house. 
 
 for the hire (jf [fHr)dture] , 
 for work done as surveyor. 
 for board and lodsxin". 
 
 Money over- 
 paid. 
 
 Ketnrn of 
 money by 
 stakeholder. 
 
 N» >ney won 
 fi\ "u stake- 
 hola • 
 ]\Ioney en- 
 trusted to 
 agent. 
 
 Money 
 obtained by 
 fraud. 
 
 Money paid 
 by mistake. 
 
 Money paid 
 for considera- 
 tion which 
 has failed. 
 
 Money paid 
 by surety for 
 defendant, 
 llent paitl. 
 
 Moni'y paid 
 on acconiiuo- 
 ilation liill. 
 
 ( 'unti'ibittion 
 by surety. 
 
 liy co-debtor, 
 
 The plaintiffs claim is $ for the board, lodging and tuition of 
 
 X.Y. 
 
 The plaintiffs claim is 3 iov money received by tlie defendant as 
 
 solicitor [or factor, <>/• collector, <*r, (Oc] of the plaintitf. 
 
 The plaintiffs claim ia I? for fees received by the defendant und"r 
 
 colour of the oflice of 
 
 The plaintiffs claim is $ for a return of money overcharged for 
 
 the cari'iaye oi goods by railway. 
 
 The plaintiffs claim is $ for a return of fees overcharged by the 
 
 defendant as 
 
 The plaintiff's claim is .$ for a return of money deposited witl; 
 
 the defendant as stakeholder. 
 
 The plaintiffs claim ia $ (uv money ontruated to the defendant 
 
 as atakehoUler, and become payable to plaintitf. 
 
 The plaintiffs claim is § for a return of money entrusted to tiie 
 
 defendant aa agent to tlie plaintiir. 
 
 The plaintiffs claim ia |> 
 plaintiff by fraud. 
 
 for a return of money obtained from the 
 for a return of money paid to the de- 
 
 . The plahitiif 3 'jlaim is $ 
 fendant by mistivke. 
 
 Tlie plaintiff's claim is 8 for a return of \noney (laid to the de- 
 
 fendant for [((?'»/■/.; tu be duitc, left itiuloiie ; or a bill to he t(<keit iip, ii'Ot taken 
 
 lip (i'C. ] 
 
 for a return of money paid as a deposit 
 
 The [)laintiffs claim is $ 
 upon shares to be allotted. 
 
 The jilaintiffa claim is $ 
 surety. 
 
 The plaintiiFs claim is $ 
 fondant. 
 
 Tlie plaintiti's claim is ij? 
 indorsed] for the dofeiidant's accommodation. 
 
 The lAiiintiirs claim is .^ for a contribution ui respect of money 
 
 [)aid by the [tlaintift' as surety. 
 
 The i)laintitt's claim is !$ for a contribution in respect of a joint 
 
 debt of the plaintiff and the defendant, paid by the plaintiff. 
 
 for money paid for the defendant as his 
 
 for money paid for rent due by the de- 
 ui)on a l)ill of exchange accejited [or 
 
T^mjl 
 
 iractci' as 
 
 ENDORSEMENTS ON WRITS. 
 
 The plaintiif s claim is $ for money paid for calls upon shares, 
 
 against which the dofondant was bound to indemnify the plaintiff. 
 
 The plaintiffs claim is $ for money payable under an award. 
 
 [5] 
 
 The plaintifTs claim is $ 
 of X. Y. , deceased. 
 
 The plaintiffs claim is f 
 $1,000, and interest. 
 
 The plaintiffs claim is $ 
 in the Province of Quebec. 
 
 The plaintiff's claim is $ 
 
 upon a policy of insurance upon the life 
 upon a bond to secure payment of 
 upon a judgment of the Court, 
 
 upon a cheque drawn by the defendant. 
 
 Money paid 
 for calls. 
 
 Money pay- 
 able nmler 
 award. 
 
 Life policy. 
 
 Money liond. 
 
 Foreign 
 judgment. 
 
 Bill of ex- 
 change, &c. 
 
 The plaintiffs claim is $ upon a bill of exchange accei:)ted [or 
 
 drawn or indorsed] by the defendant. 
 
 The plaintiffs claim is f upon a promissory note 'n.ide [or in- 
 
 dorsed] by the defendant. 
 
 The plaintiff s claim is $ against the defendant A.B. as acceptor, 
 
 and against the defendant C D. as drawer [or indorser] of a l)ill of 
 exchange. 
 
 The plaintiffs claim is $ against the defendant as surety for the Surety. 
 
 price of goods sold. 
 
 The plaintiff s claim is $ against the defendant ^l.R as principal, 
 
 and against the defentlant C.J), as surety for the price of goods sold [or 
 arrears of rent, or for money lent, or for money received by the defend- 
 ant A.B., as traveller for the plaintiffs, or,-<(;c.] 
 
 The plaintiffs claim is $ against the defendant as a del credere 
 
 agent for the price of goods sold [or as losses under a pcdicy]. 
 
 The plaintiffs claim is % for calls upon shares. 
 
 Dd credere 
 agent. 
 
 Calls. 
 
 ed fnjin the 
 
 No. 5. 
 
 SECTION II. 
 
 Indorsemenf for Cods, ((;c. — O. III., r. 5. 
 
 [AM ti} the ai,<'w Furm'^] and .f for costs ; and if the amount 
 
 claimed be paid to the plaintiff or his solicitor within 8 days [or if ffie 
 writ /.s to be nerved out of Ontario, or notire iih lieu of serviee (Uloiued, iii.Kert 
 the time limited, for appearance and defenee] from the service hereof, further 
 proceedings will bt' stayed. • 
 
 No. 6. 
 
 SECTION III. 
 
 Indorsements on WHts for Damaqes mid other Claims. — O. II. , r. 1 ; O. 
 
 III., rr. 1, 2. 
 
 The plaintiffs claim is for damages for breach of a contract to employ Agent, &c 
 the plaintiff as traveller. 
 
 The plaintiffs claim is for damages for wrongful dismissal from the 
 defendant's employment ;is traveller Land $ for arrears of wages]. 
 
 The plaintiffs claiio. is for daPiages for the defendant's wrongfully 
 quitting the plaintiff ti employment as manager. 
 
[6] 
 
 JUDICATURE ACT — FORMS. 
 
 ( 
 
 * 
 t 
 
 ■0 
 •« 
 
 I* 
 
 «• 
 *^ 
 
 C; 
 
 ?" 
 
 ,!►"• 
 '■tat" 
 
 f ','• 
 
 is:* 
 
 
 Arbitration. 
 
 
 Assault, &c. 
 
 
 By husband 
 
 
 and wife. 
 
 *''"' "'m 
 
 Solicitor. 
 
 1" kIi 
 
 
 ■Hlr!; 
 
 Bailment. 
 
 flui ! Ill'"' 
 
 
 #;iiiiiiiittii 
 
 Pledjje. 
 
 !»• 
 
 
 *• i ;■'"•" 
 
 
 *l.!„' 'lllltM 
 
 Hire. 
 
 •**.!.. '«•' 
 
 
 t -;j' 
 
 *::;':; ;.ii? 
 1^' "1 1. 
 
 Banker. 
 
 Bill. 
 
 -.:::;! »^ 
 
 
 :::ir 
 
 Bond. 
 
 *:. 
 
 
 « 
 
 Carrier. 
 
 Charter- 
 party. 
 
 Damages for 
 depriving of 
 goods. 
 Defamation. 
 
 Distress. 
 Replevin. 
 
 Wrongful 
 distress. 
 
 t-lN 
 
 The plaintifFs claim is for damages for breach of duty as factor [or, dhc. ] 
 of the plaintift' [and $ for money received as factor, &c.] 
 
 The plaintiffs claim is for damages for breach of the terms of a deed of 
 apprenticeship of X. Y. to the defendant [or plaintiff]. 
 
 The i>lain tiff's claim is for damages for non-compliance with the award 
 of X. Y. 
 
 The plaintiff's claim is for damages for assault [and i>,lso imprison- 
 ment, and for malicious prosecution]. 
 
 The plaintiffs' claim is for damages for assault and false imprisonment 
 of the plaintiff C. D. 
 
 The plaintiffs' claim is for damages for assault by the defendant C. D, 
 
 The plaintiff's claim is for damages for injury by the defendant's negli- 
 gence as solicitor of the plaintiff. 
 
 The plaintifl"'s claim is for damages for negligence in the custody of 
 goods [and for wrongfully detaining the same]. 
 
 The plaintiff's claim is ft)r damages for negligence in the keeping of 
 goods pawned [and for wrongfully detaining the same]. 
 
 The plaintiff's claim is for damages for negligence in the custody of 
 furniture lent on hire [or a carriage lent], [and for wrongfully, &c.] 
 
 The plaintiff's claim is for damages for wrongfully neglecting [or 
 refusing] to pay the plaintiff's cheque. 
 
 The plaintiff's claim is for damages for breach of a contract to accept 
 the plaintiff's drafts. 
 
 The plaintifl"'s claim is upon a bond conditioned not to carry on the 
 trade of a 
 
 The plaintiffs claim if! for damages for refusing to carry the plaintiff's 
 goods by railway. 
 
 The plaintiff's claim is for damages tor refusing to carry the plaintiff 
 by railway. 
 
 The plaintiff's claim is for damages for breach of duty in and about the 
 carriage and delivery of coals by railway. 
 
 The plaintiff's claim is for damages for breach of duty in and about the 
 carriage and delivery of machinery by sea. 
 
 The plaintift"'s claim is for damages for breach of charter-party of ship 
 [Mary]. 
 
 The plaintiff's claim is for wrongfully depriving plaintiff of goods, house- 
 hold furniture, &c. 
 
 The plaintiff's claim is for damages for libel. 
 
 The plaintiff's claim is for damages for slander. 
 
 The plaintiff's claim is in replevin for goods wrongfully distrained. 
 
 The plaintiff"s claim is for damages for i aiproperly distraining. 
 
 [This foim shall be sufficient ivhether the distress complained of he 
 wrongful or excessive, or irregular, and whether the claim be for 
 damages only, or for double value]. 
 
 Fishery. The plaintiff's claim is for damages for infringement of the plaintiff's 
 
 right of fishing. 
 
 Fraud. The plaintiff's claim is for damages for fraudulent misrepresentation on 
 
 the sale of a horse [or a business, or shares, or, tfcc.]. 
 
 The plaintiff's claim is for damages for fraudulent misrepresentation of 
 the credit of A.B. 
 
 Guarantee. The plaintiff's claim is for damages for breach of a contract of guarantee 
 
 for A.B. 
 
 The plaintiffs claim is for damages for breach of a contract to indem- 
 nify the plaintiff as the defendant's agent to distrain, 
 
^ I I /TN 
 
 ■^r^WTit^er 
 
 the defendant C. D. 
 
 ENDORSEMENTS FOR DAMAGES, ETC. [7] 
 
 The plaintifTfl claim is for a loss under a policy upon the ship " Royal Insurance. 
 Charter," and freight or cargo [ur for return of premiums], 
 
 \Thia Form shall be sufficient whether the loss clai^ned he total or partial] , 
 
 The plaintiff's claim is for a loss under a policy of fire insurance upon Fire insur- 
 house and furniture. ance. 
 
 The plaintiff's claim is for damages for breach of a contract to insure a Landlord and 
 house. tenant. 
 
 The plaintiff's claim is for damages tor breach of contract to keep a 
 house in repair. 
 
 The plaintiff's claim is for damages for breaches of covenants contained 
 in a lease of a farm. 
 
 The plaintiff's claim is for damages for injury to the plaintiff from the Medical man. 
 defendant's negligence as a medical man. 
 
 The plaintiff's claim is for damages for injury by the defendant's dog. 
 
 The plaintiff's claim is for damages for injury to the plaintiff [or, If by 
 husband and ivife, to the plaintiff CD.] by the negligent driving of the 
 defendant or his servants. 
 
 The plaintiff's claim is for damages for injury to the jilaintiff while a 
 passenger on the defendant's railway by the negligence of the defendant's 
 servants. 
 
 The plaintiffs claim is for damages for injury to the plaintiff at the 
 defendant's railway station, from the defective condition of the station. 
 
 The plaintiff's claim is as executor of A.B. deceased, for damages for 
 the death of the said ^.jB., from injuries received while a passenger on 
 the defendant's railway, by the negligence of the defendant's servants. 
 
 The plaintiff's claim is for damages for breach of promise of marriage. 
 
 Mischievous 
 animal. 
 
 Negligence. 
 
 Lord Camp- 
 bell's Act. 
 
 Promise of 
 
 marriage. 
 
 Seduction. 
 
 The plaintiffs claim is for damages for the seduction of the plaintiffs 
 daughter. 
 
 The plaintiff's claim is for damages for breach of contract to accept and Sale of goods, 
 pay for goods. 
 
 The plaintiff's claim is for damages for non-delivery [or short delivery 
 or defective quality, or other breach of contract of sale] of cotton [oc,djc.] 
 
 The plaintiff's claim is for damages for breach of warranty of a horse. 
 
 The plaintiff's claim is for damages for breach of a contract to sell [or Sale of land, 
 purchase] land. 
 
 The plaintiffs claim is for damages for breach of contract to let [or 
 take] a house. 
 
 The plaintiff's claim is for damages for breach of a contract to sell [or 
 purchase] the lease, with goodwill, fixtures, and stock-in-trade of a public- 
 house. 
 
 The plaintiffs claim is for damages for breach of covenant for title [or 
 for quiet enjoyment, or, cir.] in a conveyance of land. 
 
 The plaintiff's claim is for damages for wrongfully entering the plain- Trespass to 
 tiff's land and drawing water from his well [or cutting his grass, or pull- land, 
 ing down his "imber, or pulling down his fences, or removing his gate, ur 
 using his road or path, or crossing his field, or depositing sand there, or 
 carrying away gravel from thence, or carrying away stones from his 
 river] . 
 
 The plaintiff's claim is for damages for wrongfully taking away the sup- Support, 
 port of plaintiff's land [or house or mine] . 
 
 The ])laintift's claim is for damages for wrongfully obstructing a way Way, 
 [public highway or private way] . 
 
[8] 
 
 JUDICATURE A(JT — FOTIMS. 
 
 iii 
 
 
 #1 
 
 'lllh 
 
 * •••■.;; 
 
 IIIKIM 
 
 
 
 •t'l i<i 
 
 lit 
 
 ! i 
 i i 
 
 WfttercourHe, 
 &c. 
 
 Pasture. 
 
 Light. 
 Patent. 
 Copyright. 
 Trade mark. 
 Work. 
 
 Nuisance. 
 
 Innkeeper. 
 
 Claim for 
 return of 
 goods ; 
 damages. 
 
 Ejectment. 
 
 To establish 
 title and 
 recover rents. 
 
 Dower. 
 
 Mandamus. 
 
 Injunction. 
 
 tv ?J 
 
 Mesne profits. 
 Arrears of 
 rent. 
 
 Breach of 
 covenant. 
 
 The plaintifTs claim is for clamaf,'09 for wrongfully (liv(n'<iii<; [or 
 <tb8tnictin,L,', (»• pollutinj^, or divorting wator from] a watorconrso. 
 
 Tho plaintitfs claim iH for (laiiuv^'OH for wrongfully (Uscliarging wator 
 uitoii tho plaintifTs land [nv into tho plaiutifi's mino|. 
 
 Tho plaintiffs claim is for damagos for wrongfully obstructing tho 
 plaintiffs use of a well. 
 
 The plaintiffs claim is for damages for the infringement of tho plain- 
 tiffs right of pasture. 
 
 [This form ahull be sujficknt whatever the nature of the right to 
 
 pasture he,^ 
 
 The plaintiffs claim is for damages for obstructing tho access of light to 
 plaintiffs house. 
 
 Tho plaintiff s claim is for damages f(jr the infringement of the plaintiffs 
 patent. 
 
 The plaintiffs claim is for damages for the infringement of tho plaintiffs 
 copyright. 
 
 The plaintiffs claim is for damages for wrongfully using \i>r imitating] 
 the plaintiffs trade mark. 
 
 Tho plaintiffs claim is for damages for breach of a contract to build a 
 ship [w to repair a house, rDc] 
 
 The plaintiffs claim is for damages for breach of a contract to employ 
 the plaintiff to build a ship, tCc. 
 
 The plaintiffs claim is for damages to his house, trees, crops, &c. , caused 
 by ncjxious vapours from the defendant's factory [(*/■, d'c] 
 
 The plaintitfs claim is for damages from nuisance by noise from the 
 defendant's works [or, rtc] 
 
 The plaintiffs claim is for damages for loss of the plaintiffs goods in 
 the defendant's inn. 
 
 The plaintiff's claim is for return of household furniture, or, &c. , or 
 their value, and for damages for detaining the same. 
 
 The plaintiff's claim is to recover possession of a house, No. in 
 street, in the City of Ottawa; or f>f tlie N.E. \ of lot 2, in the 3rd cimces- 
 sion of the Township of in the county of 
 
 The plaintiff's claim is to establish his title to [/u'/v; describe propert]i\, 
 and to recover the rents thereof. 
 
 [27ie two jrrevions forms may be com,bine(l.'j 
 
 The plaintiffs claim is for dower out of lot tmmber (or de- 
 
 scribing tho property otherwise with reasoni'.'ile certainty). And take ii< )tico 
 that the plaintiff claims damages for tho detention of her d(iwer from tho 
 day of 
 
 Add to indorsement if a mandamus is claimed 
 
 And for a mandamus ; 
 Add to indorsement ij an injunction is claimed. 
 
 And for an injunction. 
 
 Add to Indorsement where Claim is to land, or to establish title, or 
 both : 
 
 And for mesne profits. 
 
 And for an account of rents or arrears of rent. 
 
 And for breach of covenant for [repairs]. 
 
"''^'inI 
 
 KNDOnSKMENTS FOR nAMAORR, ETC. 
 
 No. 7. SECTION IV. 
 
 Moncjf OhiiniK —Spcridl JiuhtrmmvutH v.mlrr Onhr lit. Ihde J). 
 
 1. Tho plaiutifTs claim is for tlio price of gfjods sold. The following 
 aro tho parfcioilavs :— 
 187!»— :{lak Doconil)or.— 
 
 lialanoo of account for butcher's meat to this dato . . . ^142 
 1880 — Ist January to Jllst of March. — 
 
 Butcher's meat supplied ........ 297 
 
 [0] 
 
 1880— Ist February. —Paid . 
 
 Balance duo 
 
 $439 
 180 
 
 ^■259 
 
 2. The plaint! Ts claim is against the defendant /!./>. as principal, and 
 against the defendant HA), as sui'ety, for the price of goods sold to All. 
 The following are the particulars : — 
 
 1881 — 2nd February. Guarantee by C'./>. of the price of woollen goods 
 to be sup])lied to A.li. 
 
 2nd February— To goods ... ... $225 
 
 .'ird Marcli— To g(jods 151 
 
 17th March— To Goods 27 
 
 5th April— To Goods . . . . . . C5 
 
 1*468 
 
 3. The plaiiitiu's claim is against the defendant, as maker of a ])romis- 
 sory note. The following are the particulars : — 
 
 Promissory note for .^1,000, dated 1st January 1879, made by defendant, 
 payable 4 mimths after date. 
 
 Principal $1,000 
 
 Interest ......... 
 
 4. The plaintiffs claim is against tho defendant A.B. as acceptor, and 
 against tho defendant C. />. as drawer, of a bill of exchange. The tollow- 
 ing are tho particulars : — 
 
 Bill of exchange for $2,000, dated 1st January, 1880, drawn by defend- 
 ant (7./>. upon and accepted by defendant A.B., payable 3 montlis 
 after date. 
 
 Principal $2,000 
 
 Interest ......... 
 
 5. The plaintiffs claim is for principal and interest due upon a bond. 
 The following are the particulars : — 
 
 Bond dated 1st January, 1879. Condition for payment of $500 on the 
 26th December, 1879. 
 
 Principal due $500 
 
 Interest .......... 
 
 0. The plaintiffs claim is for princi]ial and interest due under a cov- 
 enant. The following are the particulars : — • 
 
 Deed dated covenant to ]iay $3,000 and interest. 
 
 Principal due $800 
 
 Interest 
 
 - !-| 
 

 
 N^ 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 
 1.0 
 
 I.I 
 
 11.25 
 
 I2i 12.5 
 
 ■ulU 
 
 ■ 2.2 
 
 ■u ... ■■■ 
 
 u 
 
 i£ 12.0 
 
 ■ 
 
 'Am. 
 
 I^KJiographic 
 
 Sciences 
 
 Corparalion 
 
 ai WIST MAIN STRHT 
 
 VimSTIR.N.Y. 145M 
 
 (71«)t72-4S03 
 
 mMM 
 

 / 
 
J «" 
 I' 1 
 
 [10] 
 
 JUDICATUBE ACT — FORMS. 
 
 
 i r4i 
 
 9)1* iHlil 
 
 Ih 
 
 •1? 
 
 '■»*• 411* 
 
 : j 
 
 Executor. 
 
 Against 
 executrix. 
 
 Assignee in 
 insolvency. 
 
 Trustees. 
 
 Heir and 
 
 devisee. 
 
 Qui tarn 
 action. 
 
 No. 8. SECTION V. 
 
 Indorsements of Character of Parties. — O, III., r. 3. 
 
 The plaintiff's . ^ar \ is as executor {or admistrator] of C. D., deceased, 
 for, dec. 
 
 The plaintiff's clain . . jjainst the defendant il. ^. , as executor [or, die."] 
 of G. D.; deceased, '<>,:, d;c. 
 
 The plaintiff's claiii: .8 against the defendant A.B., as executor of X. 
 Y. , deceased, and a,^., mst the defendant C. D. , in his personal capacity, 
 for, dec. 
 
 The claim of the plaintiff is against the defendant as executrix 
 of G. D., deceased, for 
 
 The plaintiff's claim is as assignee in insolvency of A. B. , for 
 
 The plaintiff's claim is against the defendant as assignee in insolvency 
 of A.B., for 
 
 The plaintiii s claim is as [or the plaintiff's claim is against the defen- 
 dant as] trustee under the wUl of A. B. [or under the settlement upon the 
 marriage of A. B. and X. Y. , his wife]. 
 
 The plaintiff's claim is against the defendant as heir-at-law of A. B. , 
 deceased. 
 
 The plaintiff's claim is against the defendant G. D., as heir-at-law, and 
 against the defendant E. F., aa devisee of lands under the will of A. B. 
 
 The plaintiff's claim is as well for the Queen as for himself, for 
 
 No 9. 
 
 SECTION VI. 
 
 Indorsements in Matters which formerly belonged to the exclusive jurisdic- 
 tion of equity. — O. II., r. 1 ; O. III., rr. 1, 2, C, 7. 
 
 ^^A 
 
 if 
 
 'ii 
 
 J ' 
 
 
 (a) 
 
 Creditor to administer Estate, 
 
 The plaintiffs claim is as a creditor of X. Y., of 
 deceased, to have the [real and] personal estate of the said X.Y., admin- 
 istered. The defendant G. D. is sued as the administrator of the said X. 
 Y. [and the defendants E. F. and G. H. as his co-heirs-at-law]. 
 
 (6) 
 
 Legatee to administer Estate. 
 
 The plaintiff's claim is as a legatee under the will dated the day 
 
 of 18 , of X. Y. deceased, to have the [real and] 
 
 personal estate of the said X. Y. administered. The defendant G. D. is 
 sued as the executor of the said X. Y. [and the defendants E. F. and Q. 
 H. as his devisees]. 
 
 (e) Partnership account. 
 
 The plaintiff's claim is to have an account taken of the partnership 
 
^f^m 
 
 ENDORSEMENTS — EQUITY MATTERS. *. 
 
 dealings between the plaintiff and defendant [under articles of partner- 
 ship dated the day of ], and to 
 have the affairs of the partnership wound up. 
 
 (d) By Mortgagee for sale and for immediate payment and possession. 
 
 The plaintiff's claim is on a mortgage dated the day 
 
 of made between [or by deposit of title 
 
 deeds], and that the mortgage may be enforced by sale, and payment to 
 the plaintiff by the defendant personally of any balance. {If order foi' im- 
 mediate payment is wanted add}, And take notice further that the plaintiff 
 claims to be entitled forthwith to execution against the goods and lands 
 of you (naming the defendant against whom this order is cimmed) to recover 
 payment of the amount due by you. 
 
 {If order for immediate possession is wanted add), And take notice further, 
 that the plaintiff claims to be entitled to an order for the immediate 
 delivery of the mortgaged prem'ses to him. 
 
 [11] 
 
 ' ?; 
 
 (e) By Mortgagee for foreclosure and for immediate payment and possession. 
 
 The plaintiff's claim is on a mortgage dated the day of 
 
 , made between (or by deposit of title deeds), and 
 
 that the mortgage may be enforced by foreclosure. 
 
 {If order for immediate payment is wanted add), And take notice further 
 that the plaintiff claims to be entitled forthwith to execution against the 
 goods and lands of you (naming the defendant against whom this order is 
 claim^/i) to recover payment of the amount due by you. 
 
 (If order for immediate possession is wanted add). And take notice further 
 that the plaintiff claims to be entitled to the immediate possession of the 
 mortgaged premises. 
 
 {At the end of the indorsement add). If you desire a sale of the mortgaged 
 premises instead of a foreclosure, and do not intend to defend the action, 
 you must within the time allowed for appearance, file in the office within 
 named, a notice in writing, signed by yourself or your solicitor, to the 
 following effect: — "I desire a sale of the mortgaged premises in the 
 plaintiff s writ of summons mentioned, or a competent part thereof, 
 mstead of a foreclosure," and you must deposit the sum of $80 to meet 
 the expenses of such sale. 
 
 (f) 
 
 By Mortgagor for Redemption. 
 
 The plaintiff's claim is to have an account taken of what, if anything, 
 is due on a mortgage dated and made between 
 
 [parties], and to redeem the property comprised therein. 
 
 (9) 
 
 Raising Portions. 
 
 The plaintiff's claim is that the sum of $ , which by an 
 
 indenture of settlement dated , was provided for the portions 
 
 of the younger children of may be raised. 
 
[12] 
 
 W 
 
 JUDICATURE ACT — FORMS. 
 Execution of Trusts. 
 
 The plaintiff's claim is to have the trusts of an indenture dated 
 and made between , carried into execution. 
 
 *f1 
 
 i 
 
 ^it Mil 
 
 III (MM 
 
 fll'l 
 
 s 
 
 
 1 >i •:■' 
 
 n[ 
 
 (i) 
 
 Cancellation or Rectification. 
 
 The plaintiff's claim is to have a deed dated 
 [paHies], set aside or rectified, 
 
 and made between 
 
 0) 
 
 Specific Performance. 
 
 The plaintiff's claim is for specific performance of an agreement dated 
 the day of , for the sale by the plaintiff to the defendant of 
 
 certain [ft-eehold] hereditaments at 
 
 (k) 
 
 Alimony. 
 
 The plaintiff's claim is for alimony ; and the plaintiff demands as interim 
 alimony until the trial of the action the monthly {or weekly) sum of $ 
 to be paid to her on the c'ay of each month (or week) at and the 
 
 interim costs to which she is entitled by the practice in that behalf. 
 
 Note. — Where the plaintiff desires to register a certificate of lis pendens 
 the iiulcrsement on the writ of summons may contain such short description 
 of the property as may be necessary or proper for that purpose. 
 
Twr. 
 
 NOTICES. 
 
 [13] 
 
 ie between 
 
 APPENDIX (B). 
 
 NOTICES, Ac. 
 
 No. 10. 
 
 Notice of Motion to Court. — O. XLVII. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between 
 
 and 
 
 Plaintifl, 
 Defendant. 
 
 Take notice, that the Court will be moved on behalf of on day 
 
 the day of 18 , at o'clock in the forenoon, or so soon 
 
 thereafter as counsel can be heard, that (state the object of tlie, intended 
 application). 
 
 Dated the day of 18 . 
 
 (Signed) 
 
 Solicitor for the 
 To 
 
 No. 11. 
 
 Notice of Motion in Chamhers. — O. XL VIII. 
 
 [Title, &o.] 
 
 Take notice that a motion will be made on behalf of 
 before the Master in Chambers (or as the case may be), at Osgoode Hall, in 
 the City of Toronto, on day the day of 
 
 18 , at o'clock in the 
 
 the motion can be heard, for an order for 
 
 or, that 
 
 noon, or so soon thereafter as 
 time to, «fec. , 
 
 be at liberty to sign final judgment in this action for the 
 
 amount indorsed on the writ with interest, if any, and costs ; 
 
 or, that the Plaintiff be at liberty to amend the writ of summons in this 
 action by ' 
 
 or, that the 
 
 do furnish the said 
 
 with a 
 
 For time. 
 
 For final judg- 
 ment under 
 Order 10. 
 
 To amend 
 writ. 
 
 For particu- 
 lars (Partner* 
 Hhip). 
 
 statement in writing, verified by afiidavit, sotting forth the names of the 
 persons constituting the members or co-partners of their firm, pursuant 
 to the Rules of the Supreme Court, Order 12, Rule 12. 
 
 or, for an account in writing of the particulars of the Plaintifi''s claim in ii\,r particu- 
 this action (with dates and items, or as the case inay be), and that unless larB (gen- 
 such particulars be delivered in 4 days, all further proceedings be stayed erally). 
 until the delivery thereof ; 
 
if I 
 
 «^« 
 
 ! i'. 
 
 I. ) 
 
 [14] 
 
 JUDICATURE ACT — FORMS. 
 
 For particu- or, for an account in writing of the particulars of the injuries and expenses 
 
 lars (accident), mentioned in the Statement of Olaim, together with the time and place of 
 
 the accident, and the particular acts of negligence complained of, and 
 
 that unless such particulars be delivered within days, all further 
 
 proceedings be stayed until the delivery thereof ; 
 
 To discharge or, that ihe order of 
 or vary order. jg 
 
 disclosed in the affidavit of 
 application ; 
 
 in this action, dated the day of 
 
 , be (discharged, or varied by, dbc.}, on the grounds 
 
 , filed in support of this 
 
 To dismiss 
 action. 
 
 or, that this action be dismissed with costs to be tt A and paid to the 
 Defendant by the Plaintiff for want of prosecution, the Plaintiff not 
 having, &c. ; 
 
 answer within days, stating what 
 
 possession or power relating to 
 
 For discovery or, that the 
 
 of documents, documents are or have been in 
 
 the matters in question in this action ; 
 
 To inspect 
 documents. 
 
 or, that the 
 or extracts from 
 proceedings be stayed ; 
 
 be at liberty to inspect, and take copies of, 
 , and that in the meantime all further 
 
 a witness on behalf of the 
 
 upon the usual terms ; 
 
 be examined 
 
 To examine or, that 
 
 witness before forthwith before 
 
 triaL 
 
 or, that the be at liberty to issue a commission for the ex- 
 
 amination of witnesses on behalf at , and that 
 
 the trial of this action be stayed until the return of such commission upon 
 the usual terms ; 
 
 For Com- 
 mission to ^ 
 examine wit' 
 nesses. 
 
 To refer under or, that the following question arising in this action, namely : — 
 section 47 of be referred for inquiry and report to 
 
 the Act. under section 47 of the Judicature Act ; 
 
 • 
 
 To refer under or, that the in this action be tried by under 
 
 section 48 of section 48 of the Judicature Act ; 
 the Act. 
 
 For compul- or, that (this action or the matters of account in this action or the fol- 
 sorv reference lowing questions in this action being matters of account, namely, dbc.) be 
 to Master. referred to the certificate of one of the Masters of the Supreme Court of 
 Judicature to award or certify ; 
 
 For examina- 
 tion of judg- 
 ment debtor 
 as to means. 
 
 or, that the above-named judgment debtor be orally examined as to 
 whether any and what debts are owing to him, and do attend for that 
 purpose before the Master in Chambers {or aa the cose may be) at such time 
 and place as he may appoint, and that the said judgment debtor produce 
 his books, &c. , before the said Master at the time of the examination ; 
 
 For trial of or, that this action be tried before the County Court of 
 action in holden on 
 
 County Court. 
 
 For inter- or, that the plaiiltiff and the claimant appear and state the nature of their 
 
 f)leader order respective claims to the goods and chattels seized by the above-named 
 by sherifiF). sheriff under the writ of Jieri facias issued in this action and maintain or 
 relinquish the same and abide by such order as may be made herein, and 
 that in the meantime all further proceedings be stayed. 
 
No. 12. 
 
 be examined 
 
 NotLe of application for Administration Order or respecting the guardianship 
 of an infant. — G. O. Chy., No. 561. 
 
 In the High Court, 
 
 Division. 
 
 Between A.B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 To Mr. a D. 
 
 Take notice that an application will be made to 
 , in Torrnto, {or to 
 
 at his office in the city (or town) of, &c., as 
 the case may be), on the day of at the hour of 
 
 o'clock in the forenoon, (or if opposed, then to a Judge in Chambers so 
 soon thereafter as a Judge shall be sitting in Chambers, for an order for 
 the administration of the estat-", real and personal, of by the 
 
 Court, or for an order appointing guardian of an 
 
 infant) ; and upon such application will be read the affidavits of 
 this day filed. 
 
 Dated, &c. 
 
 X. Y., Solicitor for 
 
 No. 13. 
 
 Notice of Entry of Appearance. — O. VIII. , r, 12. 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 
 Take notice, that have this day entered an appearance at for 
 
 the defendant to the writ of summons in this action. 
 
 The said defendant require [or do not require] delivery of a state- 
 ment of claim. 
 Dated the day of 18 . 
 
 (Signed) 
 
 Solicitor for the defendant. 
 To 
 
 I 
 
 NOTICES. 
 
 [15] 
 
 No. 14. 
 
 Notice limiting defence. — O. VIII., r. 17. 
 
 In the High Couit of Justice. 
 
 Division. 
 
 Between ^.B., plaintiff, 
 and 
 C. D. , and E.F. , defendants. 
 t 
 

 I! 
 
 J;i 
 
 ■'I 
 
 
 [16] 
 
 JUDICATURE ACT — FORMS. 
 
 The defendant, CD., limits his defence to part only of the property 
 mentioned in the writ in this action, that is to say, to the north-west 
 quarter of the lot. 
 
 Yours, «&c., 
 G. 11., 
 Solicitor for the said defendant CD. 
 
 No. 16. 
 
 Notice disputiiig amount. — O. VIII., r. 19. 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 
 Take notice, that the defendant disputes the amount claimed by the 
 
 plaintiff (or the defendant insists that the amount due to the plaintiff is 
 
 $ only ; or the defendant insists that the amcjuut duo to the plaintiff 
 
 is $ for principal and $ for interest, since the day of 
 
 &c. , and no more, as the case may be.) 
 
 (Signed) 
 
 Solicitor for the defendant. 
 To 
 
 No. 16. 
 
 Notice in lien of Statement of Claim. — O. XVII., r. 2. 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between A.Ii., plaintitt, 
 
 and 
 
 CD., defendant. 
 
 The particulars of the plaintiff's claim herein, and of the relief and 
 remedy to which he claims to be entitled, appear by the indorsement 
 upon the writ of summons. 
 
 Dated, &c. 
 
 X. Y., 
 
 Solicitor for Plaintifi. 
 
 No. 17. 
 
 Confession of Defence, — O. XVI. , r. 7. 
 In the High Court. 
 
 Division. 
 
 Between A.-B. , plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 The plaintiff confesses the defence stated in the paragraph of the 
 
 defendant's statement of defence [or, of the defendant's further statement 
 of defence]. 
 
 ■ Dated, &c. 
 
 X. Y., 
 
 Solicitor for Plaintiff. 
 I 
 
le property 
 north-weflt 
 
 lant CD. 
 
 laintiff, 
 
 )efenclant. 
 imed by the 
 e plaintiff is 
 » the plaintiff 
 day of 
 
 he relief and 
 3 indorsement 
 
 'or Plaintifi. 
 
 NOTICES. 
 
 No. 18. 
 
 Notice by Defeiidant to Third Party.— O. XII., r. 20. 
 
 Notice filed day of 
 
 In the High Court, 
 
 — Division. 
 
 Between A.B., plaintiff, 
 and 
 CD., defendant. 
 To Mr. X. Y. 
 
 Take notice that this action has been brought by the plaintiff against 
 the defendant [as surety for M. N. , upon a bond conditioned for payment 
 of $10,000 and interest to the plaintiff. 
 
 The defendant claims to be entitled to contribution from you to the 
 extent of one-half of any sum which the plaintiff' may recover against him, 
 on the ground that you are (his co-surety under the said bond, or, also 
 surety for the said M.N., in respect of the said matter, under another 
 bend made by you in favour of the said plaintiff, dated the day of 
 
 , A.D. )]. 
 
 Or [as acceptor of a bill of exchange, for $2,500, dated the 
 day of , A. D. , drawn by you upon and accepted by the 
 
 defendant and payable 3 months after date. 
 
 The defendant claims to be indemnified by you against liability under 
 the said bill, on the ground that it was accepted for your accommodation.] 
 
 Or [to recover damages ior a breach of a contract for the sale and 
 delivery to the plaintiff of 1000 tons of coal. 
 
 The defendant claims to be indemnified by you against liability in 
 respect of the said contract, or any breach thereof, on the ground that it 
 was made by him on your behalf and as your agent.] 
 
 And take notice that, if you wish to dispute the plaintiff's claim in this 
 action as against the defendant CD., you must cause an appearance to be 
 entered for you within 8 days after service of this notice. 
 
 In default of your so appearing, you will not be entitled in any future 
 proceeding between the defendant CD. and yourself to dispute the 
 validity of the judgment in this action whether obtained by consent or 
 otherwise. 
 
 Dated, &c. 
 
 Or 
 
 (Signed) K T. 
 
 X. r., 
 
 Appearance to be entered at 
 
 Solicitor for the defendant, 
 E.T. 
 
 [17] 
 
 'I 1 ^ 1 ' I 
 
 r l|l 
 
 1 
 
 ifff 1 
 
 wagraph of the 
 •thev statement 
 
 for Plaintiff. 
 
 No. 19. 
 
 Indorsement on copy Defence and Cou)iter-claim to be served on 
 Third PaHy.—O. XVIII., r. 6. 
 
 " To the within named X. Y. 
 Take notice that if you do not appear to the within counter-claim of 
 
 the 
 
 within-named 
 B 
 
 C D., within 8 days from the service of this 
 

 [18] 
 
 JUDICATURE ACT — FORMS. 
 
 defence and counter-claim upon you, you will be liable to have judgment 
 given against you in your absence. 
 Appearances are to be entered at 
 
 
 0\ 
 
 §111 
 
 "ll 
 
 I!" 
 
 ''M 
 
 II" 
 
 No. 20. 
 
 Indorsement on Order adding or changing parties. — 0. XLIV., r. 6. 
 
 Take notice, that if you desire to discharge this order you must apply to 
 the Court for that purpose within 12 days after the service hereof upon 
 you. The original statement of claim in this cause is filed in the office of 
 the at 
 
 {and if the service is after a judgment directing a reference to a Master or 
 other ojfficer, add) and the reference under tno judgment in this matter is 
 being prosecuted in the office of the at 
 
 No. 81. 
 
 Notice of payment into Cowrt. — O. XXVI., r. 2. 
 
 In the High Court of Justice. 
 
 Division. 
 
 A. B. V. a D. 
 
 Take notice that the defendant has paid into Court $ and says 
 
 that that sum is enough to satisfy the plaintilBTs claim [or the plaintiff's 
 claim, for, dc] 
 
 Dated, &c. 
 
 To Mr. X. T., 
 
 the PlaintiU's Solicitor. 
 
 Z., 
 
 Defendant's Solicitor. 
 
 No. 33. 
 
 Acceptance of sum paid into Court. — O. XXVI., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 A. B. v. C. D. 
 
 Take notice that the plaintiff accepts the sum of 9 paid by you 
 
 into Court in satisfaction of the claim in respect of which it is paid in. 
 
 Dated, &c. 
 
 ToZ., 
 Defendant's Solicitor. 
 
 X. 1., 
 
 Plaintiff's Solicitor. 
 
9 a Master or 
 this matter is 
 
 No. 33. 
 
 NOTICES. 
 
 Notice to produce Documents. — O. XXVII., r. 11. 
 
 In the High Court of Justice. 
 
 Division. 
 
 A. B. V. a D. 
 
 Take notice that the [plaintiff oi' defendant], requires you to produce 
 for his inspection the following documents referred to in your [statement 
 of claim, or defence, or affidavit dated the day of 
 
 A.D. ]. 
 
 Dated, &c. 
 
 [Describe documents required.] 
 
 X. Y., 
 
 Solicitor to the 
 
 ToZ., 
 Solicitor for 
 
 [19] 
 
 
 No. 24. 
 
 Notice to Prod/uce (General Foim). 
 
 In the High Court of Justice, 
 ■ Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 Take notice, that you are hereby required to produce and shew to the 
 Court on the trial of this action all books, papers, letters, copies of letters, 
 and other writings and documents in your custody, possession, or power, 
 containing any entry, memorandum, or minute relating to the matters in 
 question in this action, and particularly 
 
 Dated, &c. 
 
 To the above-named 
 
 Solicitor for the above-named 
 
 h Solicitor or agent 
 
 4 
 
 h 
 
 No. 25. 
 
 Notice to inspect Documents. — O. XXVII., r. 11. 
 
 In the High Court of Justice. 
 
 Division. , 
 
 A.B. V. CD. 
 
 Take notice that you can inspect the documents mentioned in your 
 notice of the day of a.d. [except the 
 
' 
 
 [20] 
 
 JUDICATURE ACT— FORMS. 
 
 Kb-ii Oil 
 
 deed numbered in thai notice] at my office on day next 
 
 the instant, between the hours of 12 and 4 o'clock. 
 
 Or, that the [plaintiff or defendant] objects to giving you inspection of 
 the documents mentioned in your notice of the day of 
 
 A.D. on the ground that [state the growitd] : — 
 
 Dated, &o. 
 
 X.Y., 
 
 Solicitor for 
 
 No. 26. 
 
 Notice to admit Documents. — O. XXVIII., r. 3. 
 
 In the High Court ol Justice. 
 
 Division. 
 
 A. B. V. G. D. 
 
 Take notice that the plaintiff [or defendant] in this cause proposes to 
 adduce in evidence the several documents hereunder specified, and that 
 the same may be inspected by the defendant [or plaintiff] , his solicitor 
 or agent at , on , between the hours of ; and the 
 
 defendant [or plaintiff] is hereby required, within 4 days from the said 
 da^, to admit that sucn of the said documents as are specified to be 
 originals were respectively written, signed, or executed, as they purport 
 respectively to have been ; that such as are specified as copies are true 
 copies, and such documents as are stated to have been served, sent, or, de- 
 livered, were so served, sent, or delivered respectively ; saving all just 
 exceptions to the admissibility of all such documents as evidence in this 
 cause. 
 
 X r.. 
 
 Solicitor for 
 Dated, &c., 
 
 To E. F. , solicitor [or agent] for defendant [or plaintiff]. , ' 
 
 0. H. , solicitor \pr agent] for plaintiff [or defendant]. 
 
 [Here describe the docwmnts, the manner of doing which may be as 
 
 follows ;] 
 
 Originals. 
 
 Description of Documents. 
 
 Deed of covenant between A. B. and C. D. first part, and E. F. 
 
 second part 
 
 Indenture of lease from A. B. to CD 
 
 Indenture of release between A. B., C. i> , first part, &c 
 
 Letter — defendant to plaintiff 
 
 Policy of Insurance on goods by ship "Isabella," on voya<»e 
 
 from Toronto to Kingston 
 
 Memorandum of agreement between CD., captain of said ship, 
 
 mdE.F 
 
 Bill of exchange for $600 at S months, drawn by A. B, on and 
 
 accepted by C. D., indorsed by E. F. and O.Et. 
 
 Dates. 
 
 January 1, 1878. 
 February 1, 1878. 
 February 2, 1878. 
 March 1, 1878. 
 
 July .3, 1877! 
 
 August 1, 1878. 
 
 May 1, 1879. 
 
NOTICES. 
 Copin. 
 
 Description of Documents. 
 
 Register of baptism oi A.B. in tlie parisli 
 
 ol X 
 
 Letter— pi: i..ti£F to defendant. 
 
 Notice to produce papers 
 
 Record of a Judgment of the Court of 
 Queen's Bench in an action, J.S. and 
 J.N 
 
 Dates. 
 
 January 1, 1848. 
 February 1, 1848. 
 
 March 1, 1878. 
 
 Trinity Term, 10th 
 Vic. 
 
 Original or il n i >licate 
 served, rieui'. or 
 
 delivered, wh<in, how 
 and by whom. 
 
 SentbyPcnerai Post 
 February 2, 1848. 
 
 Served March 2,1878 
 on defendant's at- 
 torney by E. F,, 
 of 
 
 iwr-m 
 
 [21] 
 
 No. 87. 
 
 Notice of Trial— O. XXXI., r. 2. 
 
 In the High Court of Justice. 
 
 Division. 
 
 A.B. V. CD. 
 
 Take notice of trial of this action [or the issues in this action ordered to 
 be tried] at for the day of next 
 
 X Y., plaintiff's solicitor [or as the case may be] . 
 
 Dated, &o. 
 To Z., defendant's solicitor [or as the case may be] . 
 
 No. 38. 
 
 Notice of Entry of Demurrer for Argument. — 0. XXIV., r. 7- 
 
 Dates. 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Take notice, that have this day entered i ■ 
 of the to the in this action. 
 Date(!the day of 18 . 
 
 
 lary 1, 1878. 
 ruary 1, 1878. 
 ruary 2, 1878. 
 ch 1, 1878. 
 
 3, 1877! 
 
 Plaintiff, 
 
 Defendant, 
 argument the demurrer 
 
 ust 1, 1878. 
 
 
 
 (Signed) 
 of 
 Solicitor 
 
 
 
 r 1, 1879. 
 
 To 
 
 
 for the 
 
 
[22] 
 
 JUDICTURE ACT — FOKMS. 
 
 
 im 
 
 ■■■ -I'f 
 
 No. »9. 
 
 Notice of Discontinuance. — O. XIX. 
 
 In the High Court of Justice. 
 
 D iviaion. 
 Between 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 
 Take notice, that the plaintiff hereby wholly discontinues this action, 
 (or withdraws so much of h claim in this action as relates to, <&c. 
 (If not against all the defendants add), "As against the defendant," &c. 
 
 Dated the day of 18 . 
 
 (Signed) 
 
 of 
 Solicitor for the plaintiff. 
 
 No. 30. 
 
 Notice of Cross-examination of Deponents at Trial on Affidairits, — 
 
 O. XXXIV., r. 4. 
 In the High Court of Justice. 
 
 Between 
 
 Division. 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Take notice, that the intend at the trial of this action to cross- 
 
 examine the several deponents named and described in the schedule hereto 
 on their affidavits therein specified. 
 
 And also take notice that you are hereby required to produce the said 
 deponents for such cross-examination before the Court aforesaid. 
 
 Dated the day of 18 . 
 
 Solicitor for the 
 To 
 
 Thb Sohedulb above referred to. 
 
 Name of Deponent. I Address and Description. 
 
 Date when affidavit filed. 
 
 No. 31. 
 
 Notice of BenevMl of Writ of Execution.— O. XXXVIII., r. 15. 
 In the High Court of Justice. • 
 
 Between 
 
 Division. 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
WM 
 
 AFFIDAVITS. 
 
 [23] 
 
 Take notice, that the writ of issued in this action directed to the 
 
 sheriff of and bearing date the day of 18 , has been 
 
 renewed for one year from the day of 18 . 
 
 Dated the day of 18 . 
 
 (Signed) 
 
 SoUoitor for the 
 To the sherifl of 
 
 APPENDIX (C). 
 
 AFFIDAVITS. 
 
 No. 3!8. 
 
 Affidavit of Service of Summons. — O. VI., r. 12 (a). 
 
 In the High Court of Justice. 
 
 Division. 
 
 Between 
 
 and 
 
 solicitor for the above-named 
 
 Plaintift, 
 
 Defendant, 
 make oath and say 
 
 I, of 
 
 as follows : — 
 
 I did on the day of 18 , before the hour of in the 
 
 noon, serve the above-named in this action with a true 
 
 copy of the summons hereto annexed marked A, by leaving it at the 
 of the said situate, &c. , with there 
 
 Sworn at this day of 18 . 
 
 Before me, Ac. 
 
 This affidavit is filed on behalf of the 
 
 affidavit filed. 
 
 No. 33. 
 
 Affidamt by Landlord. — O. VIII., r. 13. 
 
 In the High Court, 
 
 Division. 
 
 Between A.B., Plaintiff, 
 and 
 CD., Defendant. 
 
 of 
 
 make oath and say 
 
 I, 
 
 as follows ; — 
 
 I am in possession of the land sought to be recovered in this action by 
 myself {or by the said CD., my tenant, {as the case may be). 
 
 Sworn at this day of 
 
 Before me, etc. 
 
[24] 
 
 JUDICATURE ACT — FORMS. 
 
 No. 34. 
 
 '>^i • I 
 
 Affidomt as to Documents. — O. XXVII., r. 10. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A.B. , Plaintift, 
 
 and 
 
 CD., Defendant. 
 
 I, the above-named defendant CD., make oath and say as follows : — 
 
 1. I have in my possession or power the documents relating to the 
 matters in question in this action set forth in the first and second parts of 
 the first schedule hereto. 
 
 2. I object to produce the said documents set forth in the second part 
 of the said first schedule hereto. 
 
 3. That [here state upon what groujids the objection is made, and verify 
 the )acts as far as may he\ . 
 
 4. I have had, but have n'ot now, in my possessi-.n or power the docu- 
 ments relating to the matters in question in this suit set forth in the 
 second schedule hereto. 
 
 5. The last-mentioned documents were last in my possession or power 
 on [state wherC\. 
 
 6. That [here state what has become of the last-mentioned documents, and 
 in whose possession they now are] . 
 
 7. According to the best of my knowledge, information, and belief, I 
 have not now, and never had in my possession, custody, or power, or in 
 the possessior , custody, or power of my solicitors or agents, solicitor or 
 agent, or in the possession, custody, or power of any other persons or 
 person on my behalf, any deed, account, book of account, voucher, 
 receipt, letter, memorandum, paper, or writing, or any copy of or extract 
 from any such document, or any other document whatsoever, relating to 
 the matters in question in this action or any of them, or wherein any 
 entry has been made relative to such matters, or any of them other than 
 and except the documents set forth in the said first and second schedules 
 hereto, and the pleadings and other proceedings in the action. 
 
 No. 35. 
 
 »H, i i 
 
 Affidavit on Production ivhen made by an officer of a Corporation. — 
 
 O. XXVII., rr. 7, 10. 
 
 In the High Court. 
 Division. 
 
 Between A.B., Plaintiflf, 
 
 and 
 
 O.D., Defendant. 
 
 I, of , make oath and say as follows : — 
 
 1. I am the {here state the name of the office held by the deponent in the 
 service offhe Company on whose belialfhe makes the affidavit), and as such, 
 
AFFIDAVITS. 
 
 [25] 
 
 >n or power 
 
 have knowledge of all documents which are, or have been, in the custody' 
 or possession of the said (Company), relating to the matters in question in 
 this action. 
 
 2. I am cognizant of the matters in question in this action. 
 
 3. The said defendants have in their possession or power, the docu- 
 ments relating to the matters in question in this action, set forth in the 
 first and second parts of the first schedule hereto. 
 
 4. The said defendants object to produce the said documents set forth 
 in the second part of the said first schedule hereto. 
 
 5. That (here data on what grounds the ohjectio)h is made, and verify the 
 facts as far as may be). 
 
 6. The said defendants have had, but have not now, in their possession 
 or power, the documents relating to the matters in question in this action, 
 set forth in the second schedule hereto. 
 
 7. The last mentioned documents were last in the possession or power 
 of the said defendants on {state when). 
 
 8. That Qiere state ivhat lias become of the last mentioned documents, and 
 in whose possession they tioio are). 
 
 9. According to the best of my knowledge, information, and belief, the 
 said defendants have not now, and never had, in their possession, custody, 
 or power, or in the possession, custody, or power of myself, or of any of its 
 solicitors or agents, or of any person or persons whomsoever, on its be- 
 half any (proceed as in last form). 
 
 Mffi^ 
 
 
 No. 36. 
 
 Affidavit in support of GarnisJiee Order. — O. XLI., r. 5. 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Judgment Creditor, 
 Judgment Debtor. 
 
 I, of the above-named judgment creditor [or solicitor for the 
 
 above-named judgment creditor] make oath and say as follows ; — 
 
 1. By a judgment of the Court given in this action, and dated the 
 
 day of 18 , it was adjudged that I [or the above-named judgment 
 
 creditor] should recover against the above-named judgment debtor 
 the sum of $ , and costs to be taxed, and the said costs were by a 
 
 taxing officer's certificate dated the day of 18 , allowed at $ 
 
 2. The said still remains unsatisfied to the extent of and 
 interest amounting to $ 
 
 3. (Name, address and description of garnishee) is indebted to the 
 judgment debtor in the sum of $ or thereabouts. 
 
 4. The B&id {insert lutme of garnisJiee) is within the jurisdiction of this 
 Court. 
 
 Sworn at the day of 18 . 
 
 Before me 
 
 This affidavit is filed on behalf of the 
 
l!^ ^ 
 
 [26] 
 
 No. 3T. 
 
 JUDICATURE ACT — FORMS. 
 
 t 
 
 
 nIIHI 
 
 Affidavit on Interpleader. — O. I., r. 2. 
 
 In the High Court of Justice. 
 Division. 
 
 Between 
 
 and 
 
 Plaintift, 
 Defendant. 
 
 the defendant in the above action, make oath and say 
 
 day of 18 , 
 
 I have not yet 
 
 (is or are) 
 
 I, of 
 
 as follows : — 
 
 1. The writ of summons herein was issued on the 
 and was served on me on the day of 18 
 delivered a statement of defence herein. 
 
 2. The action is brought to recover . The said 
 in my possession, but I claim no interest therein. 
 
 3. The right to the said subject-matter of this action has been and is 
 claimed (if cUdm in writing make the torititig an exhibit) by one 
 
 who (staie expectation of suit or that he has already sued). 
 
 4. I do not in any manner collude with the said or with the 
 above-named plaintiff, but I am ready to bring into Court or to pay or 
 dispose of the said in such manner as the Court may order or direct. 
 
 Sworn at the day of 18 . 
 
 Before me 
 This affidavit is filed on behalf of the 
 
 APPENDIX (D). 
 
 k^ . 
 
 >i'': ': 
 
 I m 
 
 h f: 6 
 
 'II 
 il 
 
 1 it 1 
 
 i 
 
 1 
 I 
 
 1 
 
 _ Itl 4 
 
 Account 
 stated. 
 
 Claim. 
 
 No. 38. 
 
 PLEADINGS.— O. XV. 
 O. XV., r. 4. 
 
 In the High Court of Justice, 
 Division 
 
 Writ issued 3rd September 18 
 
 A. B., Plaintiff, 
 
 and 
 E. F., Defendant. 
 
 Statement of Claim. 
 
 1. Between the 1st of January and the 28th of February, 1879, the 
 plaintiff supplied to the defendant various articles of drapery ; and pay- 
 ments on account were from time to time made by the defendant. 
 
PLEADINGS. 
 
 2. On the 28th of February, 1879, a balance remained due to the plain- 
 tiff of $326, and an account was on that day sent by the plaintiff to the 
 defendant shewing that balance. 
 
 3. On the 1st of March following, defendant paid the plaintiff by cheque 
 $32 on account of the same The residue of the said balance, amounting 
 to $293, has never been paid. 
 
 The plaintiff claims $ 
 
 The plaintiff propose? that this action should be tried at Whitby. 
 
 [27] 
 
 Delivered the 
 
 X. r., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
 No. 39. 
 
 O. XV., r. 4. See Form No. 12. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 22nd December, 18 . 
 In the matter of the estate of ^. B. deceased. 
 
 Administra- 
 tion of an 
 Intestate's 
 Estate. 
 
 mM 
 
 Between £. JF*., Plaintiff, 
 and 
 Q. H., Defendant. 
 
 Statement of Claim. 
 
 1. A. B.,ot K., in the County of L. , died on the Ist July, 1880, in- Claim, 
 testate. The defendant, O. H., is the administrator of A. B. 
 
 2. A. B. died entitled to lands in the said county for an estate of fee 
 simple, and also to some other real estate and to personal estate. The 
 defendant has entered into possession of the real estate of A. B., and 
 received the rents thereof. 
 
 3. A. B, was never married ; he had one brother only, who pre-deceased 
 him without having been married, and two sisters only, both of whom also 
 pre-deceased him, namely M. N. and P. Q. The plaintiff is the only child 
 of M. N. , and the defendant is the only child of P. Q. 
 
 The plaintiff claims — 
 
 1. To have the real and personal estate of ^. B. administered in this 
 Court, and for that purpose to have all proper directions given and 
 accounts taken. 
 
 2. To have a receiver appointed of the rents of his real estate. 
 
 3. Such further or other relief as the nature of the case may require. 
 The plaintiff proposes that this action should be tried at London. 
 
 Delivered the 
 X r.,of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
 m 
 
 No. 40. 
 
 O. XV., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 In the matter of the estate o{ A. B., deceased. 
 
I: 
 
 )l 
 
 [28] 
 
 Defence. 
 
 
 JUDICATURE ACT — FORMS. 
 
 ' Between!?. J''., Plaintiff, 
 and 
 G. JET., Defendant. 
 
 Statement of Defence. 
 
 1. The plaintiff is an illegitimate child of M. N. She was never married. 
 The defendant admits the other allegations contained in the 1st and 3rd 
 paragraphs of the plaintiffs statement of claim. 
 
 2. The intestate was not entitled to any real estate at his death. 
 
 3. The personal estate of A. B. was not sufEcient for the payment of 
 his debts, and has all been applied in payment of his funeral and t( ^ta- 
 mentary expenses, and part of his debts. 
 
 Delivered the 
 X. Y., of 
 
 No. 41. 
 
 day of 
 Defendant's 
 
 18 
 
 Solicitor. 
 
 by 
 
 O. XV. , r. 4. See Form No. 12. 
 
 Administra- 
 tion of a Tes- 
 tator's Estate I 
 
 Claim. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 22nd December, 18 
 
 In the matter of the estate of ^. B. deceased. 
 
 Between E. F., Plaintiff, 
 
 and 
 
 0. H., Defendant. 
 
 St<ttement of Claim. 
 
 1. A. B., oi K., in the county of L., duly made his last will, da^ed t.' .: 
 1st day of March, 1873, whereby he appointed the defendant and M. !. . 
 (who died in the testator's lifetime), executors thereof, and devised a; id 
 bequeathed his real and personal estate to and to the use of his executotc 
 in trust, to pay the rents and income thereof to the plaintiff for his life ; 
 and after his decease, and in default of his having a son who should attain 
 21, or a daughter who should attain thatjage, or marry, upon trust as to his 
 real estate for the person who would be the testator's heir at-law, and as to 
 his personal estate for the persons who would be the testator's next of kin 
 if he had died intestate at the time of the death of the plaintiff, and such 
 failure of his issue as aforesaid. / 
 
 2. The testator died on the 1st day of July, 1880, and his will was 
 proved by the defendant, on the 4th of October, 1880. The plaintiff has 
 not been married. 
 
 3. Th. testator was at his death entitled to real and personal estate ; 
 the detondant entered into the receipt of the rents of the real estate and 
 got in the personal estate ; he has sold some part of the estate. 
 
 The plaintifl claims — 
 
 1. To have the real and personal estate of A. B. administered in this 
 Oourt, and for that purpose to have all proper directions given and 
 accounts taken. 
 
 2. Such further or other relief as the nature of the case may require. 
 The plaintiff proposes that this action should be tried at Napanee. 
 
 Delivered the 
 X. T., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
by 
 
 No. 42. 
 
 PLEADINGS. 
 O. XV., r. 4. 
 
 [29] 
 
 In the High Court of Justice, 
 Division. 
 
 In the matter of the estate oi A. B. deceased. 
 
 Between E. F., Plaintiff, 
 
 and 
 
 O. H., Defendant. 
 
 Statement of Defence. 
 
 1. A. B'a will contained a charge of debts ; he died iiisolvent ; he was Defence, 
 entitled at his death to some real estate which the defendant sold, and 
 which produced the net sum of $22,500, and the testator had some per- 
 sonal estate which the defendant got in and which produced the net sum 
 
 of $5,400. 
 
 2. The defendant applied the whole of the said sums and the sum of 
 $84 which the defendant received from rents of the real estate, in the 
 payment of the funeral and testamentary expenses and debts of the tes- 
 tator. 
 
 8. The defendant made up his Recounts and sent a copy thereof to the 
 plaintiff on the 10th of January, 1880, and offered the plaintiff free access 
 to the vouchers, to verify such accounts, but he declined to avail himself 
 of the defendant's offer. 
 
 4. The defendant admits the allegations in the 1st and 2nd paragraphs 
 of the plaintiffs statement of claim. 
 
 5. The defendant submits that the plaintifit ought to pay the costs of 
 this action. 
 
 w 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Defendant's Solicitor. 
 
 18 by 
 
 No. 43. 
 
 by 
 
 Action against Del credere Agents. — O. XV., r. 4. 
 
 In the High Court of Justice, Agent. 
 Division. 
 
 Writ issued 28rd August, 18 
 
 Between A. B. and Company, Plaintiffs, 
 
 and 
 
 E. F. and Company, Defendants. 
 
 Statement of Claim. 
 
 1. The plaintiffs are manufacturers of artificial manures, carrying on Claim, 
 business at , in the county of 
 
 2. The defendants are commission agents, carrying on business in 
 Toronto. 
 
 8. In the early part of the year , the plaintiffs couunenced, and 
 
 down to the 18 , continued to consign to the defendants, as 
 
; ■^'; :l 
 
 n'!-!i 
 
 'An 
 
 [30] 
 
 ( ! tih^ 
 
 
 '■iW 
 
 JUDICATURE ACT — FORMS. 
 
 their agents, large quantities of their manures for sale, and the defen- 
 dants sold the same and received the price thereof and accounted to the 
 plaintiffs therefor. 
 
 4. No express agreement has ever been entered into between the plain- 
 tiffs and the defendants with respect to the terms of the defendants' em- 
 ployment as agents. The defendants have always charged the plaintiffs 
 a commission at per cent, on all sales effected by them, which is the 
 rate of commission ordinarily charged by all del credere agents in the said 
 trade. And the defendants, in fact, always accounted to the plaintiffs for 
 the price, whether they received the same from the purchasers or not. 
 
 5. The plaintiffs contend that the defendants are liable to them as del 
 credere agents, but if not so liable are under the circumstances herein- 
 after mentioned liable as ordinary agents. 
 
 6. On the , the plaintiffs consigned to the defendants for 
 sale a large quantity of goods, including tons of 
 
 7. On or about the , the defendants sold tons oi 
 
 part of such goods to one O. H. for $ , at 3 
 
 months' credit, and delivdred the same to him. 
 
 8. G. H. was not, at that time, in good credit and was in insolvent cir- 
 cumstances, and the defendants might, by ordinary care and diligence, 
 have ascertained the fact. 
 
 9. G. H. did not pay for the said goods, but before the expiration of the 
 said 3 months for which credit had been given, the estate of the said 
 G. H. was placed in liquidation under the insolvency Acts then in force ; 
 and the plaintiffs have never received the said sum of $ or any 
 part thereof. 
 
 The plaintiffs claim : 
 
 1. Damages to the amount of $ 
 
 2. Such further or other relief as the nature of the case m^ require. 
 The plaintiffs propose that this action should be tried at Hamilton. 
 
 Delivered the 
 
 X. r., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
 No. 44. O. XV., r. 4. 
 
 [Title as in claim, omitting date of issue of writ.] 
 
 Statement of Defence. 
 
 Defence. 1. The defendants deny that the said commission of per cent, 
 
 mentioned in paragraph 4 of the claim is the rate of commission ordin- 
 arily charged by del credere agents in the said trade, and say that the 
 same is the ordinary commission for agents other than del credere agents, 
 and they deny that they ever accounted to the plaintiffs for the price of 
 any goods, except after they had received the same from the purchasers. 
 
 2. The defendants deny that they were ever liable to the plaintiffs as 
 del credere agents. 
 
 8, With respect to the 8th paragraph of the plaintiffs' statement of 
 claim, the defendants say that at the time of the said sale to the said 
 G. H., the said G. H. was a person in good credit. If the truth is that the 
 said G. H. was then in insolvent circumstances, the defendants did not 
 suspect and had not reason to suspect the same, and could not by ordinary 
 care or dUigeuoe have ascertained the fact. 
 
I \ r\ 
 
 PLEADINGS. 
 
 4. The defendants admit the allegations contained in paragraphs 1, 
 2, 8, 6, 7 and 9 of the plaintiffs' statement of claim. 
 
 Delivered the day of 18 , by 
 
 X. r., of Defendant's Solicitor. 
 
 [31] 
 
 No. 45. 
 
 O. X\., r. 4; 0. XII., r. 5. 
 
 In the High Gom't of Justice, 
 ■ Division. 
 
 Bill of 
 exchange. 
 
 Writ issued 23rd August, 18 
 
 Between A. B. and C. £>., Plaintiffs, 
 
 and 
 
 E. F. and G. H., Defendants. 
 
 Statement of Claim. 
 
 1. Messrs. M. N. <t Co., on the day oi drew a bill Claim, 
 of exchange upon the defendants for $ , payable to the order of 
 
 the said Messrs. M. N. dt Co. 8 mouths after date, and the defendants 
 accepted the same. 
 
 2. Messrs. M. N. d Co. indorsed the bill to the plaintiffs. 
 
 [3. (Introduced by amendment to meet the defence in the defendant's 
 statement of defence infra). The plaintiff gave value and consideration 
 for the said bill in manner following, that is to say : on the 
 day 18 , the said Messrs. M. N. d Co. were indebted to 
 
 the plaintiff in about $ the balance of an account for goods sold from 
 
 time to time by him to them. Ou that day they ordered of the plaintiff 
 further goods to the value of about $ which last mentioned goods have 
 
 since been dehvered by him to them. And at the time of the order for such 
 last mentioned goods it was agreed between Messrs. M. N. d Co. and the 
 plaintiff, and the order was received upon tho terms, that they should 
 indorse and hand over to him the bill of exchange sued upon, together 
 with various other securities on account of the said previous balance, and 
 the price of the goods so ordered on that day. The said securities, inclu- 
 ding the bill sued upon, were thereupon on the same day indorsed and 
 handed over to the plaintiff.] 
 
 4. The bill became due on the , and the defendant has not 
 
 paid it. 
 
 The plaintiffs claim : — (state claim) 
 
 The plaintiffs propose that this action should be tried at Kingston. 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Plaintiffs' Solicitor. 
 
 18 ,by 
 
 No. 46. 
 
 0. XV., r. 4. 
 
 fTitle.J 
 
 Statement of Defence. 
 
 1. The bill of exchange mentioned in the statement of claim was drawn Defence 
 and accepted under the circumstances hereinafter stated, and except as 
 
■r r> i 
 
 [32] 
 
 JUDICATURE ACT — FORMS. 
 
 ,.* I 
 
 9i0iii 
 
 
 < I 
 
 hereinafter mentioned there never was any consideration for the accept- 
 ance or payment thereof by the defendants. 
 
 2. Shortly before the acceptance of the said bill it was agreed between 
 the said Messrs. M. H. dc Co., the drawers thereof, and the defendants, 
 that the said Messrs. M. N. d: Co. should sell and deliver to the defend- 
 ants free on board ship at the port of 1200 tons 
 of coal during the month of , ard that the dttendants should 
 pay for the same by accepting the said Messrs. M. N. S Co.'s draft for 
 9 at 6 months. 
 
 8. The said Messrs. M. N. d Co. accordingly drew upon the defendants, 
 and the defendants accepted the bill of exchuuge now sued upon. 
 
 4. The defendants did all things which were necessary to entitle them 
 to delivery by the e-aid Messrs. M. I^. d Co. of the said 1200 tons of coals 
 under their said contract, and the time for delivery has long since elapsed ; 
 but the said Messrs. M. N. d Co. never delivered the same, or any part 
 thereof, but have always refused to do so, whereby the consideration for 
 the defendant's acceptance has wholly failed. 
 
 5. The plaintiffs first received the said bill, and it was first indorsed to 
 them after it was overdue. 
 
 6. The plaintiffs never gave any value or consideration for the said bill. 
 
 7. The plaintiffs took the said bill with notice of the facts stated in the 
 2ud, 8rd, and 4th paragraphs hereof. 
 
 DeUvered the 
 X. r.,of 
 
 day of 
 Defendants' Solicitor. 
 
 18 
 
 by 
 
 No. 47. 
 
 O. XV., r. 4 ; O. XX. 
 
 (Reply where plaintiff does not introduce into his statement of claim 
 the allegations necessary'by way of reply to the defence.) 
 
 [Title.] 
 
 \% 
 
 iMI 
 
 i 
 
 Reply. 
 
 1. The plaintiff joins issue npon the defendant's statement of defence. 
 
 2. The plaintiff gave value and consideration for the said bill in man- 
 ner following, that is to say, on the day of 18 , the 
 said Messrs M. K. & Go. were indebted to the plaintiff in about $ 
 
 the balance of an account for goods sold from time to time by him to them. 
 On that day they ordered of the plainttff farther goods to the value of 
 about $ which last mentioned goods have since beendeUvered by 
 
 him to them. At the time of the order for such last mentioned goods it 
 was agreed between Messrs. M. N. & Co. and the plaintiff, and the order 
 was received upon the terms, that they should indorse and hand over to 
 him the bill of exchange sued upon, together with various other secur- 
 ities on acco'int of the said previous balance, and the price of the goods 
 (10 ordered on that day. The said securities including the bill sued npon, 
 were thereupon on the same day indorsed and handed over to the plaintiff. 
 
 Delivered the 
 
 X. r., of 
 
 day of 
 Plaintiff's SoUcitor. 
 
 18 
 
 by 
 
; indorsed to 
 
 No. 48. 
 
 PLEADINGS. 
 0. XV., r. 4; O. XII., r. o. 
 
 [33] 
 
 In the High Court of Justice, 
 Diviaion. 
 
 Promissory 
 Note, 
 
 Writ issued 3rd November, 18 , 
 
 Between A. B., Plaintiff, 
 
 and 
 
 K F., Defendant. 
 
 Statement of Claim. ^ 
 
 1. The defendant on the day of Clivitii. 
 made his promissory note, whereby ho promised to pay to the plaintiff or 
 
 his order $ 3 months after date. 
 
 2. The note became due on the day of 
 
 18 , and the defendant has not paid it. ^ 
 
 The plaintiff claims : — 
 
 The amount of the note and interest thereon to judgment. 
 The plaintiff proposes that this action should be tried at Peterborough. 
 
 Delivered the day of 18 by 
 
 X. Y., of Plaintiff's Solicitor. 
 
 No. 49. O. XV., r. 4. 
 
 [Title.] 
 Statement of Defence, 
 
 1. The defendant made the note sued upon under the following circum- Defence, 
 stances : — The plaintiff and defendant had for some years been in partner- 
 ship as coal merchants, and it had been agreed between them that they 
 should dissolve partnership, that the plaintiff* should retire from the 
 business, that the defendant should take over the whole of the partnership 
 
 assets and liabilities, and should pay the plaintiff the value of his share in 
 the assets after deducting the liabilities. 
 
 2. The plamtiff thereupon undertook to examine the partnership books, 
 and inquire into the state of the partnership assets and liabilities ; and he 
 did accordingly examine the books, and make the said inquiries, and he 
 thereupon represented to the defendant that the assets of the firm exceeded 
 810,000, and that the liabilities of the firm were under $3,000,whereas the 
 fact was that the assets of the firm were less than $5,000, and the liabilities 
 of the firm largely exceeded the assets. 
 
 3. The misrepresentations mentioned in the last paragraph induced the 
 defendant to make the note now sued on, and there never was any other 
 consideration for the making of the note. 
 
 Delivered the day of 18 by 
 
 X. r., of 
 
 Defendant's Solicitor. 
 
[84] 
 
 JUDICATUBE ACT— FORMS. 
 
 j M » ilk , 
 ! 9«'!I > 
 
 ^r 
 
 No. 50. 
 
 Statement of Claim. — 0. XV., r. 4. 
 
 Action on Bill In the High Court of Justice, 
 o£ Exchange. Division. 
 
 Writ issued 1st February, 18 . 
 
 Between A. B. Plaiutifi, 
 
 and 
 
 0. D., Defendant. 
 
 Olaun. !• The plaintiflf on the day of 
 
 a bill of exchange upon the defendant for $ 
 , after date, and the defendant accepted the same. 
 
 2. Thu bill became due on day of 
 defendant has not paid it. 
 
 3. [(Ametidment to meet defence infra. ) The defendant, who at the time 
 ' of the acceptance of the said bill was an infant within ^he age of 21 years, 
 
 ratified and confirmed the said acceptance after he attained full age and 
 before action, by a writing made and signed by him.] 
 
 The plaintifi claims : — JState claim.) 
 
 The plaintiff proposes that this action should be tried at Picton. 
 
 188 , drew 
 payable 3 months 
 
 188 , and the 
 
 Delivered the 
 
 X r., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 by 
 
 1: 
 
 No. 61. 
 
 Statement of Defence.— O. XV., r. 4. 
 [Title.] 
 
 At the time of making the alleged acceptance of the said bill the defend- 
 ant was an infant within the age of 21 years. 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Defendant's Solicitor. 
 
 18 by 
 
 No. 62. 
 
 O. XV., r. 4; O. XX. 
 
 (Reply where plaintiff does not introduce into his statement of daim the 
 allegations necessary by way oj reply to the defence.) 
 
 [Title.] 
 
 Repli' 
 
 The defendant C. D., who at thi time of the acceptance of the said bill 
 was an infant within the age of 21 years, ratified and confirmed the said 
 acceptance after he attained full age and before action, by a writing made 
 and signed by him. 
 
 Delivered the 
 X r., of 
 
 day of 
 Plaintiff's Solioitor. 
 
 18 
 
 by 
 
I 1 r\ 
 
 No. 53. 
 
 PLEADINGS. 
 0. XV., r. 4 ; 0. XII., r. 6. 
 
 [36] 
 
 11^ 
 
 In the High Oonrt of Justice, 
 Division. 
 
 BiUof 
 
 exohBnge and 
 ooiuideitktion. 
 
 Writ issued 8rd October, 18 
 
 Between A. B. and 0. D., Plaintiffs, 
 
 and 
 
 E. F. and Q. H., Defendants. 
 
 Statement of Olaim. 
 
 1. The plaintiffs are merchants, factors, and commisoion Olaim. 
 agents, carrying on business in Toronto. 
 
 2. The defendants are merchants and commission agents, carrying on 
 business at Montreal. 
 
 8. For several years prior to the 18 , the plaintiffs 
 
 had been in the habit of consigning goods to the defendants for sale, as 
 their agents, and the defendants had been in the habit of consigning goods 
 to the plaintiffs for sale, as their agents ; and each party always received 
 the prioe of the goods sold by him for the uther ; and a balance was from 
 time to time struck between the parties, and paid. 
 
 On the of , the moneys so received by the 
 
 defendants for the plaintiffs, and remaining in their names, largely ex- 
 ceeded the moneys received by the plaintiffs for the defendants, and a 
 balance of $ was accordingly due to the plaintiffs from the defendants. 
 
 4. On or about the , 18 , the plaintiffs sent to the de- 
 fendants a statement of the accounts between them, shewing the said sum 
 as the balance due to the plaintiffs from the defendants ; and the defena- 
 ants agreed to the said statement of accounts as correct, and to the said 
 sum of 9 as the balance due by them to the plaintiffs, and 
 agreed to pay interest on such balance if time were given to them. 
 
 5. The defendants requested the plaintiffs to give them 8 months' 
 time for payment of the said sum of ^ , and the plaintiffs agreed 
 to do so upon the defendants accepting the bills of exchange hereinafter 
 mentioned. 
 
 6. The plaintiffs thereupon on the drew 2 bills 
 of exchange upon the defendants, one for $ , and the other for 
 9 , both payable to the order of the plaintiffs 3 months after 
 date, and the defendants accepted the bills. 
 
 The said bills became due on the 18 , and the de- 
 
 fendants have not paid the bills, or either of them, nor the said sum of 
 9 . 
 
 The plaintiffs claim : — 
 9 and interest to the date of judgment. 
 
 The plaintiffs propose that tuis action should be tried at Toronto. 
 
 Delivered the 
 X. r., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
■ k 
 
 ?■,• 
 
 
 
 III 
 
 [86] 
 
 False im- 
 prisonment. 
 
 in*'* 
 
 **>' 
 
 
 ' XI5K : 
 
 Claim. 
 
 -J 
 
 Defence. 
 
 No. 54. 
 
 JUDICATUBE ACT — FORMS. 
 O. XV., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 8rd September, 18 
 
 Between A. B., Plaintiff, 
 
 and 
 
 E. F., Defendant. 
 
 Statch^ent of Claim. 
 
 1. The plaintiff is a journeyman painter. The defendant is a builder, 
 having his building yard, and carrying on business at Ottawa, and for 6 
 months before and up to the 22nd August, 18 , the plaintiff was in the 
 defendant's employment as a journeyman painter. 
 
 2. On the said 22nd August, 18 , the plaintiff came to work as usual 
 in the defendant's yard, at about 6 o'clock in the morning. 
 
 8. A few minutes after the plaintiff had so come to work the defend- 
 ant's foreman, X. Y., who was then in the yard, called the plaintiff to 
 him, and accused the plaintiff of having on the previous day stolen a 
 quantity of paint, the property of the defendant, from the yard. The 
 plaintiff denied the charge, but X. Y. gave the plaintiff into the custody 
 of a constable, whom he had previously sent for, upon a charge of steal- 
 ing paint. 
 
 4. The defendant was present at the time when the plaintiff was given 
 into custody, and authorized and assented to his being given into custody ; 
 and in any case X. Y., in giving him into custody, was acting within the 
 scope and in the course of his employment as the defendant's foreman, 
 and for the purposes of the defendant's business. 
 
 5. The plaintiff upon being so given into custody, was taken by the said 
 constable a considerable distance through various streets, on foot, to the 
 
 pohce station, and he was there detained in a cell till late in 
 the same afternoon, when he was taken to the poUce court, and 
 
 the charge against him was heard before the magistrate then sitting 
 thero, and was dismissed. 
 
 6. In consequence of being so given into custody, the plaintiff suffered 
 annoyance and disgrace, and loss of time and wages, and loss of credit 
 and reputation, and was thereby unable to obtain any employment or 
 earn any wages for 3 months. 
 
 The plaintiff claims $ damages. 
 
 The plaintiff proposes that this action should be tried at Ottawa. 
 
 Dehvered the 
 
 X. r., of 
 
 No. 55. 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
 O. XV., r. 4. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The defendant denies that he was present at the time when the 
 plaintiff was given into custody, or that he in any way authorized or 
 
jf^y t \ ir\ 
 
 m m 
 
 rork as usual 
 
 PLEADINGS. 
 
 assented to his being given into custody. And the said X. Y., in giving 
 the plaintiff into custody, did not act within the scope or in the course of 
 his employment as the defendant's foreman, or for the purposes of the 
 defendant's business. 
 
 2. At some time about 6 or 6 o'clock on the , being 
 the evening before the plaintiff was given into custody, a large quantity 
 of paint had been feloniously stolen by some person or persons from a 
 shed upon the defendant's yard and premises. 
 
 3. At about 5.30 o'clock on the evening of the the plaintiff, 
 who had left off work about half an hour previously, was seen coming out 
 of the shed when no one else was in it, although his work lay in a distant 
 part of the yard from, and he had no business in or near the shed. He 
 was then seen to go to the back of a stack of timber in another part of the 
 yard. Shortly afterguards the paint was found to have been stolen, and it 
 was found concealed at the back of the stack of timber behind which the 
 plaintiff had been seen to go. 
 
 4. On the following morning, before the plaintiff was given into custody, 
 he was asked by X. Y. what he had been in the shed and behind the stack 
 of timber for, and he denied having been in either place. X Y. had rea- 
 sonable and probable cause for suspecting, and did suspect that the plaintiff 
 was the person who had stolen the paint, and thereupon gave him into 
 custody. 
 
 [37] 
 
 Delivered the 
 X,Y.,oi 
 
 day of 18 by 
 
 Defendant's Solicitor. 
 
 No. 56. 
 
 O. XV., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 Fraud. 
 
 Writ issued 3rd September, 188 . 
 
 Between A. B., Plaintiff, 
 
 and 
 
 E. F., Defendant. 
 
 Statement of Claim. ' 
 
 1. In or about March, 1880, the defendant caused to be inserted Claim, 
 in the Newspaper an advertisement, in which he offered for sale the 
 lease, fixtures, fittings, goodwill, and stock-in-trade of a baker's shop and 
 business, and described the same as an ncreasing business, and doing 12 
 barrels a week. The advertisement directed application for particulars 
 
 to be made to X. Y. 
 
 2. The plaintiff having seen the advertisement applied to X. Y., who 
 placed him in communication with the defendant, and negotiations ensued 
 between the plaintiff and the defendant for the sale to the plaintiff of the 
 defendant's bakery at with the lease, fixtures, fittings, stock- 
 in-trade, and good-will. 
 
 8. In the course of these negotiations the defendant repeatedly stated 
 to the plaintiff that the business was & steadily increasing business, and 
 that it was a business of more than 12 barrels a week. 
 
 4. On the 5th of April, 1880, the plaintiff, believing the said statements 
 of the defendant to be true, agreed to purchase the said premises from 
 the defendant, for $2000, and paid to him a deposit of $800 in respect of 
 the purchase. 
 
 11; 
 
 S 
 
 ih. 
 
[38] 
 
 JUDICATURE ACT — FORMS. 
 
 
 «ss 
 
 5. On the 15th of April the purchase was completed, an assignment of 
 the lease executed, and the balance of the purchase money paid. On the 
 same day the plaintiff entered into possession. 
 
 6. The plaintiff soon afterwards discovered that at the time of the 
 negotiations for the said purchase by him and of the said agreement, and 
 of the completion thereof, the said business was and had long been a 
 declining business ; and at each of those times, and for along time before, 
 it had never been a business of more than 4 barrels a week. And the 
 said premises were not of the value of $2000, or any saleable value 
 whatever. 
 
 7. The defendant made the false representations hereinbefore mention- 
 ed well knowing them to be false, and fraudulently, with the intention of 
 inducing the plaintiff to make the said purchase on the faith of them. 
 
 The plaintiff claims $ damages. 
 
 The plaintiff proposes that this action should be tried at Brockville. 
 
 Delivered the 
 
 X. r., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
 No. 67. 
 
 O. XV., r. 4. 
 
 [Title.] 
 Statement of Defence. 
 
 I. i 
 
 I. f 
 
 Defence. 1 . The defendant says that at the time when he made the representations 
 
 mentioned in the 3rd paragraph of the statement of claim and through- 
 out the whole of the transactions between the plaintiff and defendant, 
 and down to the completion of the purchase and the relinquishment by 
 the defendant of the said shop and business to the plaintiff, the said 
 business was an increasing business, and was a business of over 12 bar- 
 rels a week. And the defendant denie-3 the allegations of the 6th par- 
 agraph of the statement of claim. 
 
 2. The defendant repeatedly during the negotiations told the plaintifi 
 that he must not act upon any statement nr representation of his, but 
 must ascertain for himself the extent and value of the said business. 
 And the defendant handed to the plaintiff for this purpose the whole of 
 his books, shewing fully and truthfully all the details of the said busi- 
 ness, and from which the nature, extent, and value thereof could be fully 
 seen, and those books were examined for that purpose by the plaintiff, 
 and by an accountant on his behalf. And the plaintiff made the pur- 
 chase in reliance upon his own judgment, and the result of his own in- 
 quiries and investigations, and not upon any statement or representation 
 whatever of the defendant. 
 
 8. The defendant admits the allegations ot paragraphs 1, 2, 8 and 
 4 of the statement of claim. 
 
 Delivered the 
 X. Y.f of 
 
 day of 
 Defendant's Solicitor. 
 
 18 
 
 by 
 
No. 58. 
 
 PLEADINGS. 
 0. XV.', r. 4. 
 
 [39] 
 
 vi 
 
 Guarantee. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 3rd September, 1881. 
 
 Between A. B. and C. D., Plaintiffs, 
 
 and 
 
 E. F. and O. H., Defendants. 
 
 Statement of Claim. 
 
 1. The plaintiffs are brewers, carrying on their business at Guelph, claim, 
 under the firm of X. Y. S Co. 
 
 2. In the month of March, 1879, M. N. was desirous of entering into 
 the employment of the plaintiffs as a traveller and collector, and it was 
 agreed between the plaintiffs and the defendants and M. N., that the 
 plaintiffs should employ Af. N. upon the defendants entering into the 
 guarantee hereinafter mentioned. 
 
 8. An engagement in writing was accordingly made and entered in- 
 to, on or about the 30th March, 1879, between the plaintiffs and the 
 defendant, whereby, in consideration that the plaintiffs would employ 
 M, If. as their collector, the defendants agreed that they would be an- 
 swerable for the due accounting by M. N. to the plaintiffs for, and the 
 due payment over by him to the plaintiffs of all moneys which he should 
 receive on their behalf as their collector. 
 
 4. The plaintiffs employed M. N. as their collector accordingly, and he 
 entered upon the duties of such employment, and continued therein 
 down to the 31st December, 1880. 
 
 5. At various times between the 29th of September, and the 25th oi 
 December, 1880, M. N. received on behalf of the plaintiffs and as their 
 collector, sums of money from debtors of the plaintiffs, amounting in the 
 whole to the sum of $3,400 ; and of this amount M. N. neglected to ac- 
 count for or pay over to the plaintiffs sums amounting in the whole to 
 $908, and appropriated the last-mentioned sums to his own use. 
 
 6. The defendants have not paid the last-mentioned sums, or any part 
 thereof, to the plaintiffs. 
 
 The plaintiffs claim : — [State claim.) 
 
 The plaintiffs propose that this action should be tried at Guelph. 
 
 Delivered the day of 18 by 
 
 X. r., of Plaintiff's Solicitor. 
 
 No. 59. 
 
 0. XV., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 Negligence. 
 
 Writ issued 3rd September, 1881. 
 
 Between A.B., Plaintiff, 
 
 and 
 
 E. F., Defendant. 
 
 Statement of Claim. 
 
 1. The plaintiff is a shoemaker, carrying on business at Toronto. The Claim, 
 defendant is a soap and candle manufacturer at the same place. 
 
 
[40] 
 
 JUDICATURE ACT — FORMS. 
 
 2. On the 23rd May, 1881, the plaintiff was walking eastward along the 
 south side of King Street, in the city of Toronto, at about 3 o'clock in 
 the afternoon. He was obliged to cross Yonge Street, which is a street 
 running into King Street at right angles thereto. While he was cross- 
 ing this street, and just before he could reach the foot pavement 
 on the further side thereof, a two-horse van of the defendant's under the 
 charge and control of the defendant's servants, was negligently, suddenly, 
 and without any warning, turned at a rapid and dangerous pace out of 
 King Street into Yonge Street. The pole of the van struck the plaintiff 
 and knocked him down, and he was much trampled by the horses. 
 
 3. By the blow and fall and trampling the plaintiff's left arm was broken, 
 and he was bruised and injured on the side and back, as well as internally, 
 and in consequence thereof the plaintiff was for 4 months ill and suffer- 
 ing, and unable to attend to his busiiiess, and incurred heavy medical and 
 other expenses, and sustained great loss of business and profits. 
 
 The plaintiff claims $ damages. 
 
 The plaintiff proposes that this action should be tried at Lindsay. 
 
 Delivered the day of 18 by 
 
 X. F., of Plaintiff's Solicitor. 
 
 .1 ■( 
 
 No. 60. 
 
 O. XV., r. 4. 
 
 [Title.] 
 Statement oj Defence. 
 
 Defence. 1. The defendant denies that the van was the defendant's van, or that 
 
 it was under the charge or control of the defendant's servant. 'The van 
 belonged to John Smith, of , a carman and contractor 
 
 employed by the defendant to carry and deliver goods for him ; and the 
 persons under whose charge and control the said van was were the servants 
 of the said John Smith. 
 
 2. The defendant denies that the van was turned out of King Street 
 either negligently, suddenly, or without warning, or at a rapid or danger- 
 ous pace. 
 
 3. The defendant says, that the plaintiff might and could, by the exercise 
 of reasonable care and diligence, have seen the van approaching him, and 
 avoided any collision with it. 
 
 Delivered the day of 18 by 
 
 X. Y.f of Defendant's Solicitor. 
 
 Pt !■• 
 
 
 
 
 
 1 
 
 
 il: 
 
 ■> 
 
 
 
 ■ i 1 * 
 
 ■ ■ 
 
 Li; 
 
 1 
 
 
 Action for 
 Assault. 
 
 No. 61. 
 
 statement oj Claim. — O. XV., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 15th March, 18 . 
 
 Between ^.B., Plaintiff, 
 
 and 
 
 E. F. , Defendant. 
 
 1. The plaintiff is a c :;rrying on business at 
 
 2. On the day of the defendant assaulted the 
 plaintiff, and the plaintiff was seriously hurt and wounded, and was for a 
 

 I I rv 
 
 PLEADINGS. 
 
 long time in oonseqaence of his injuries, unable to transact his business, 
 and incurred expense for nursing and medical attendance. 
 
 3. \l^AmenAment to meet defence infra.) The defendant pretends that 
 he committed the assault complained of in his own defence ; but the facts 
 are that the defendant was trespassing on the plaintiff's land, and re- 
 fused to leave though requested to do so, whereupon the plaintiff laid his 
 hands on the defendant in order to remove him, using so much force and 
 no more than was necessary for that purpose.] 
 
 The plaintiff claims | damages. 
 
 The plaintiff proposes that this action should bo tried at Cobourg. 
 
 Delivered the 
 X. Y.. of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 by 
 
 [41] 
 
 m ; and the 
 the Stirvants 
 
 No. 63. O. XV.,r.4. 
 
 [Title.] 
 
 Statement of Defence. 
 
 The plaintiff first assaulted the defendant who, thereupon, committed 
 the alleged assault in his own defence. 
 
 Delivered the 
 X. Y., of 
 
 day of 
 Defendant's Solicitor. 
 
 18 
 
 by 
 
 No. 63. 
 
 O. XV., r. 4 ; O. XX. 
 
 {Reply where plaJntif doe/t not introduce into Jiis statement of claim 
 the allegalions necessary by way of reply to the defence.) 
 
 [Title.] 
 
 Beply. 
 
 The defendant E. P., pretends that he committed the assault com- 
 plained of m his own defence ; but the facts are that the defendant was 
 trespassmg on the plaintiff's land, and refused to leave though requested 
 to do so, whereupon the plaintiff laid his hands on the defendant in order 
 to remove him, using so much force and no more than was necessarv for 
 that purpose. '' 
 
 Delivered the 
 Y., of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 by 
 
[42] 
 
 JUDICATURE ACT— FORMS. 
 
 No. 64. 
 
 t«. 
 
 Statement of Claim. — 0. XV. , r. 4. 
 
 Action against 
 Railway Com- 
 pany for Inju- 
 ries by Col- 
 lision caused 
 through 
 Negligence. 
 
 *•••* -IS?" 
 Sstt :> 
 
 «tS3S ! 
 
 r 
 
 ; 
 
 j 
 
 [■ 1 f 
 
 ||f| 
 
 !' li;; 
 
 1 1 ! 
 
 ; 1 
 
 
 i 
 
 
 i ^ 
 
 
 
 
 ^ i 
 
 
 D 
 
 '■ 1 ■' 
 
 f 
 
 
 i 
 
 i ' ' 
 
 j 
 
 
 
 il 
 
 ? 
 
 
 
 
 i 
 
 
 
 1 
 
 - :( 
 
 
 
 li 
 
 r ' 
 
 'i '■■■ 
 
 
 
 
 !l .V' 
 
 
 
 
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 M 
 
 1 
 j 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 
 
 1881. 
 
 Between A. B., Flaintifif. 
 
 and 
 
 Defendants. 
 
 1. The defendants are carriers of passengers upon a railway from 
 Toronto to 
 
 2. In January, 1881, the plaintiff took a ticket from Toronto to 
 
 and was received by the defendants as a passenger to be by them safely 
 carried in a train which started from Toronto for 
 
 3. Owing to the negligence of the defendants in the management of 
 their railway, the train in which the plaintiff was travelling came into 
 collision with an engine, at a short distance from Toronto. 
 
 4. The plaintiff was thrown from his seat by the said collision, and 
 much injured about the head, and had his right arm broken. 
 
 5. [The following paragraphs may be introduced by amendment to 
 meet Defence infra. The defendants allege that the plaintiff accepted 
 the sum of $300 in full satisfaction of all cause of action which he might 
 have on account of the said collision, but the facts are as follows : 
 
 6. A short time after the collision an of&cer of the defendants procured 
 the plaintiff to accept the said accord and satisfaction by fraudulently re- 
 presenting that his injuiies were of a temporary nature, and that if they 
 should afterwards turn out to be more serious than he anticipated, he 
 would still be able to obtain furth3r compensation from the defendants. 
 
 7. The plaintiff fully believing the said representations, and acting upon 
 the faith thereof, was induced thereby to accept the said accord and satis- 
 faction, and then accepted the same subject to the express condition that 
 he should not thereby exclude himself from further compensation from 
 the defendants if his injuries should prove more serious than he then antici- 
 pated. 
 
 8. Mter the acceptance of the said accord and satisfaction, the injuries 
 ' uffered by the plaintiff in the collision did turn out to be more serious 
 
 lan was anticipated at the time aforesaid, and thereupon the plaintiff 
 commenced the present action.] 
 
 The plaintiff claims $ damages. 
 
 The plaintiff proposes that this action should be tried at Toronto. 
 
 Delivered the 
 X. Y., of 
 
 No. 65. 
 
 day of 
 Plaintiff's Solicitor 
 
 18 ,by 
 
 0. XV., r. 4. 
 
 [Title.] 
 , Statement of Defence. 
 
 1. Shortly after the collision referred to in the statement of claim, one 
 of the officers of the defendants called upon the plaintiff for the purpose of 
 
y^y I \ ir\ 
 
 :^ m 
 
 PLEADINGS. 
 
 ascertaining from him whether he intended to make any claim against the 
 defendants, arising out of the said collision. 
 
 2. At such interview the plaintiff informed the said officer that he did 
 intend to make a claim against the defendants arising out of the said col- 
 lision ; and it was there and then agreed between the plaintiff and the said 
 officer acting on behalf and by the authority of the defendants, that in 
 consideration that the defendants would pay to the plaintiff a sum of ^00, 
 he, the plaintiff, would accept such sum from the defendants in full satis- 
 faction and discharge of all cause of action which he had or might have 
 against the said defendants on account of the said collision. 
 
 3. Thereupon the said officer acting on behalf of the defendants, paid to 
 the plaintiff the sum of $300, and the plaintiff received the same in full 
 discharge of the aforesaid cause of action. 
 
 [43] 
 
 Delivered the 
 
 X. r.,of 
 
 No. 66. 
 
 day of 
 Defendant's Solicitor. 
 
 18 by 
 
 9I'§ 
 
 O. XV., r. 4; O. XX. 
 
 (Reply where Plaintiff does not introduce into his statement of claim 
 the allegations necessary by loay of reply to the Defence.) 
 
 [Title.] 
 
 Reply. 
 
 1. The defendants allege that the plaintiff accepted the sum of $300 in 
 full satisfaction of all cause of action which be might have on account of 
 the said collision, but the facts are as follows : 
 
 2. A short time after the collision an officer of the defendants procured 
 the plaintiff to accept the said accord and satisfaction by fraudulently 
 representing that his injuries were of a temporary nature, and that if they 
 should afterwards turn out to be more serious than he anticipated, he 
 would still be able to obtain further compensation from the defendants. 
 
 3. The plaintiff fully believing the said representations, and acting upon 
 the faith .thereof, was induced thereby to accept the said accord and 
 satisfaction, and then accepted the same subject to the express condition 
 that he should not thereby exclude himself from further compensation 
 from the defendants if his injuries should prove more serious than he then 
 anticipated. 
 
 4. After the acceptance of the said accord and satisfaction, the injuries 
 suffered by the plaintiff in the collision did turn out to be more serious 
 than was anticipated at the time aforesaid and thereupon the plaintiff 
 commenced the present action. 
 
 Delivered the 
 X. r.,of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 
 
 ,by 
 
'■.:r: 
 
 [44] 
 
 JUDICATURE ACT — FORMS. 
 
 No. 67. 
 
 O. XV., r. 4. 
 
 ! m 
 
 
 
 Landlord and In the High Court of Justice, 
 Tenant. Division. 
 
 Writ issued 3rd Sejitember, 1881. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 G. D.y Defendant. 
 
 Statement of Claim. 
 Claim. 1 On the day of the plaintiff, by 
 
 deed, let to the defendant a house and premises. No. 52 Street, 
 
 in the City of Belleville, for a term of 21 years from the 
 day of , at the yearly rent of $400 payable quarterly. 
 
 2. By the said deed, the defendant covenanted to keep the said house 
 and premises in good and tenantable repair. 
 
 3. The said deed also contained a clause of re-entry, entitling the plain- 
 tiff to re-enter upon the said house and premises, in case the rent thereby 
 reserved, whether demanded or not, should be in arrear for 21 days, or in 
 case the defendant should make default in the performance of any covenant 
 upon his part to be performed. 
 
 « 4. On the , a quarter's rent became due ; and on the 
 
 , another quarter's rent became due. On the 
 
 , both had been in arrear for 21 days, and both are still due. 
 
 6. On the same , the house and premises were not, 
 
 and are not now, in good or tenantable repair, and it would require the 
 
 expenditure of a large sum of money to reinstate the same in good and 
 
 tenantable repair, and the plaintiffs reversion is much depreciated in value. 
 
 The plaintiff claims ; — 
 
 1. Possession of the said house and premises. 
 
 2. $ for arrpors of rent. 
 
 3. $ damages fcr the defendant's breach of his covenant to 
 
 repair. 
 
 4. $ for occupation of the house and premises from the 
 
 , to the day of recovering possession. 
 The plaintiff proposes that this action should be tried at Belleville. 
 Delivered the day of 18 
 
 Z. F., of Plaintiffs Solicitor. 
 
 by 
 
 IV'J 
 
 : 'P: 
 
 ti m 
 
 No. 68. 
 
 O. XV., r. 4; O. XIII., r. 2. 
 
 Recovery of 
 Land. 
 
 Landlord and! 
 Tenant. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 4th January, 18 
 
 Between A. B. , Plaintiff, 
 . and 
 C. D. , Defendant. 
 
 Statement of Claim. 
 
 1. On the day of 
 
 the defendant a house, No. 62 
 
 the plaintiff let to 
 Street, in the city of Ottawa, 
 
PLEADINGS. 
 
 [45] 
 
 as tenant from year to year, at the yearly rent of $420, payable quarterly, 
 the tenancy to commence on the day of 
 
 2. The defendant took possession of the house and continued tenant 
 thereof until the day of last, when the tenancy 
 determined by a notice duly given. 
 
 3. The defendant has disregarded the notice and still retains possession 
 of the house. 
 
 4. [Amendment to meet the counter-claim hvfra.] (The defendant CD, 
 sets up in his defence that the plaintiff agn ed to give to the defendant a 
 new lease and the plaintiff A. B. admits the agreement alleged in the state- 
 ment of defence, but he refuses to grant to the defendant a lease, inasmuch 
 as such agreement provided that the lease should contain a covenant by the 
 defendant to keep the house in good repair and a power of re-entry by the 
 plaintiff upon breach of such covenant, and the plaintiff says that the 
 defendant, since the agreement was made, has not kept the house in good 
 repair, and the same is now in a dilapidated condition.) 
 
 The plaintiff claims : — 
 
 1. Possession of the house. 
 
 2. $ for mesne profits from the day of 
 
 The plaintiff proposes that this action should be tried at Ottawa. 
 
 Delivered the 
 X r.,of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 by 
 
 No. 69. 
 
 Statement of Defence and Counter-claim. — O. XV. , rr. 3, 4 ; sec. 16, s. -s. 4. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D., Defendant. 
 
 (by original action,) 
 
 And between C. D. , Plaintiff, 
 
 and 
 
 A. B., Defendant. 
 
 (by counter-claim.) 
 
 The defence and counter-claim of the above-named C. D. 
 
 1. Before the determination of the tenancy mentioned in the statement Defence, 
 of claim, the plaintiff A. B.,hy writing dated the ' day of 
 
 , and signed by him, agreed to grant to the defendant 
 C. X).,a lease of the house mentioned in the statement of claim, at the 
 yearly rent of $450, for the term of 21 years, commencing from the 
 
 day of , when the defendant, C. D. 's, tenancy from 
 
 year to year determined, and the defendant has since that date been and 
 still is in possession of the house under the said agreement. 
 
 2. By way of counter-claim the defendant claims to have the agreement Counter- 
 specifically performed, and to have a lease granted to him accordingly. claim. 
 
 Delivered the 
 
 X r.,of 
 
 day of 
 Defendant's Solicitor. 
 
 18 by 
 
[46] 
 
 JUDICATURE ACT — FORMS. 
 
 No. 70. 
 
 O. XV., r. 4; 0. XX. 
 
 ^'"'4 in*' 
 
 
 {Eeply where plaintiff does not introd/uce into his statement of claim 
 the allegatiomi necessary by way of reply to the defetwe.) 
 
 [Title] 
 Reply. 
 
 Keply. The plaintift, A. B. , admits the agreement stated in the defendant, 
 
 C. X>.'s, statement of defence, but he refuses to grant to the defendant a 
 lease, because such agreement provided that the lease should contain a 
 covenant by the defendant to keep the house in good repair, and a power 
 of re-entry by the plaintiff upon breach of such covenant, and the plaintiff 
 says that the defendant, since the making of the said agreement, has not 
 kept the house in good repair, and the same is now in a dilapidated 
 condition. 
 
 Delivered the 
 r.,of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 by 
 
 1*' 
 
 No. 71. 
 
 §S 
 
 M J 
 
 '■m\ 
 
 m 
 
 O. XV., r. 4; O. XIII., r. 2. 
 
 EecoTery of In the High Court of Justice, 
 I'a^^- Division. 
 
 Writ issued 
 
 18 
 
 Between A. B. and C. D., Plaintiffs, 
 , and 
 
 E. L., Defendant. 
 
 Statement of Claim. 
 
 Claim. 1. K. L., late of Barrie in the County of Simcoe duly executed his last 
 
 will, dated the 4th day of April, 18 , and thereby devised his lands 
 in the County of Simcoe unto and to the use of the plaintiffs and their 
 heirs, upon the trusts therein mentioned for the benefit of his daughters 
 Margaret and Martha, and appointed the plaintiffs executors thereof. 
 
 2. K. L. died on the 3rd day of January 18 , and nis said will was 
 proved by the plaintiffs in the proper Surrogate Court on or about the 4th 
 day of February, 18 . 
 
 3. K. L. was at the time of his death seised in fee of lot No. 1 in the 
 3rd concession of the township of , and lot No. 5 in the 4th conces- 
 sion of the township of , both in the County of Simcoe. 
 
 4. The defendant, soon after the death of K. L., entered into possession 
 of the said lots, and has refused to give them up to the plaintiff*. 
 
 The plaintiffs claim : — 
 
 1. Possession of the said 2 lots. 
 
 2. $ for mesne profits of the premises from the death of 
 
 K. L, till such possession shall be given. 
 The plaintiffs propose that this action should be tried at Barrie. 
 
 Delivered the day of 18 by 
 
 X r., of Plaintiff's Solicitor. 
 
 'I'A 
 
I I A 
 
 No. 72. 
 
 PLEADINGS. 
 O. XV., r. 4. 
 
 [47] 
 
 f'l 
 
 In the High Court of Justice. 
 Division. 
 
 Treapasa. 
 to Land. 
 
 Writ issued 3rd October, 18 
 
 |i 
 
 Between A. B. , Plaintiff, 
 
 and 
 
 E. F., Defendant. 
 
 > possession 
 
 Statement of Claim. 
 
 1. The plaintiff" was on the 5th March, 18 , and still is the owner and Claim, 
 occupier of a farm in the Township of in the County of 
 
 , being lot No. 4 in the 7th concession of the said 
 Township. 
 
 2. A private road, known as Highfield Lane, runs tlirough a portion of 
 the plaintiff^'s farm. It is bounded upon both sides by fields of the plaintifl^'s 
 and is separated therefrom by a fence and ditch. 
 
 3. For a long time prior to the 5th March, 18 , the defendant had 
 wrongfully claimed to use the said road for his horses, carts and waggons 
 on the alleged ground that the same was a public highway, and the plaintiff 
 had frequently warned him that the same was not a public highway, but 
 the plaintiff's private road, and that the defendant must not so use it. 
 
 4. On the 5th March, 18 , the defendant came with a cart and horse, 
 and a large number of servants and workmen, and forcibly used the road, 
 and broke down and removed a gate which the plaintiff had caused to be 
 placed across the same. 
 
 5. The defendant and his servants and workmen on the same occasion 
 pulled down and damaged the plaintiff's fence and ditch upon each side of 
 the road, and went upon the plaintiff's field beyond the fence and ditch, 
 and injured the crops there growing, and dug up and injured the soil of 
 the road ; and in any case the acts mentioned in this paragi'aph were 
 wholly unnecessary for the assertion of the defendant's alleged right to 
 use, or the user of the said road as a highway. 
 
 The plaintiff claims : — 
 
 1. Damages for the wrongs complained of. 
 
 2. An order restraining the defendant from any repetition of any 
 of the acts complained of. 
 
 3. Such further relief as the nature of the case may require. 
 
 The plaintiff proposes that this action should be tried at Woodstock. 
 
 Delivered the 
 X Y.y of 
 
 day of 
 Plaintiff's Solicitor. 
 
 18 by 
 
■ 
 
 I 
 
 SSI: 
 
 I ' 
 
 [48] JUDICATURE ACT — FORMS. 
 
 No. 73. 0. XV., r. 4. 
 
 f " 
 
 [Title.] 
 Statement of Defence. 
 
 1. The defendant says that the road was and is a public highway for 
 horses and carriages ; and a few days before the Hth of March, 18 , the 
 plaintiff wrongfully erected the gate aci'oss tlie road for the purpose of 
 obstructing and preventing, and it did obstruct and prevent the use of the 
 road ns a highway. And the defendant on tlie said r)th March, 18 , 
 caused the said gate to be removed, in order to enable iiim lawfully to use 
 the road by his horses, carts and waggons as a high%\ay. 
 
 2. The defendant denies the allegations of the 5th paragraph of the 
 statement of claim, and says that neither he nor nny of his workmen or 
 servants did any act, or used any violence, other than was necessary to 
 
 X enable the plaintiff lawfully to use the highway. 
 
 Delivered the 
 
 X. Y.,of 
 
 day of 
 Defendant's Solicitor. 
 
 18 by 
 
 No. 74. 
 
 Form of Demurrer. — O. XXIV. 
 
 In the High Court of Justice, 
 Division. 
 
 A. B. V. CD. 
 
 The defendant [plaintiff] demurs to the [plaintiffs statement of com- 
 plaint or defendant's statement of defence, or of set-ofl", or of counter- 
 claim] [or to so much of the plaintiffs statement of complaint as claims 
 or as alleges as a breach of contract the matters men- 
 tioned in paragraph 7, or as the case may 6e], and says that the same is 
 bad in law on the ground that \here state a ground of demurrer] and on 
 other grounds sufficient in law to sustain this demurrer. 
 
 Delivered the 
 Y.,ot 
 
 day of 
 Plaintiffs Solicitor. 
 
 18 by 
 
tT. I ( A 
 
 PILECTPaS. 
 
 [49] 
 
 APPENDIX {\i). 
 
 lighway for 
 I, 18 , the 
 purpose of 
 e use of the 
 ■ch, 18 
 fully to use 
 
 raph of the 
 ivorkmen or 
 lecessary to 
 
 18 by 
 
 No. 75. 
 
 PRECIPES. 
 Amended Summons. — O. II., r, 6. 
 
 [Title, &0.1 
 
 Amend in pursuance of order [or fiat] dated the writ of Bummons 
 
 in this action by (set out amendments when required). 
 
 Dated the day of 18 . 
 
 (Signed) 
 (Address) 
 
 SoUoitor for the 
 
 ent of com- 
 of counter- 
 nt an claims 
 natters men- 
 the same is 
 rer] and on 
 
 18 by 
 
 No. 76. 
 
 Menewed Summuas. — O. VI., r. 1 (h.) 
 [Title, &C.1 
 
 Required in pursuance of order dated 
 Bummons in this action, 
 
 Dated the 
 
 , a renewed writ of 
 
 day of 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 18 
 
 No. 77. 
 
 Entry oj Appearemce. — 0. VIII., r. 6. 
 
 [Title, &c.] 
 
 Enter an appearance for in this action 
 
 Dated the day of 
 
 18 
 
 ^Signed) 
 (Address) 
 
 The said defendant require (o»- do not require, as </te cast }nai/6e) a 
 statem ent of claim to be delivered. 
 
 %'"'• 
 
i Hi ^ I 
 
 i'i 
 
 ;. i- 
 
 [50] JUDICATURE ACT — FORMS. 
 
 (In case tJie defendant vyi.'ihcs to dispute the amount claimed, and to mfike 
 no oilier defence, the following may he added), The defendant disputes the 
 amount claimed by the plaindfT, {or the defandant insists that the amount 
 due to the plaintiit is $ only, or the defendant insists that the amount 
 
 due to the plaintiff is, $ for principal and $ for interest, since 
 
 the day of &c., and no more,) as ^/le cose mat/ be. 
 
 No. 78. 
 
 Entry of Appearance in action for land limiting Defence. — 0. VIII., r. 17. 
 
 [Title, &c.] 
 
 Enter an appearance for the defendant in this action. The said 
 
 defendant limits his defence to part only of the property mentioned in the 
 writ of summons, namely, to 
 
 Dated the day of 18 
 
 (Signed) 
 (Address) 
 
 The said defendant require a statement of claim to be 
 
 delivered. 
 
 No. 79. 
 
 Entry of Appearance, by new defendant. — O. XLIV., r. 3. 
 
 [Title, &c.] 
 
 Enter an appearance for 
 dated the day of 
 
 i.:gs in this action. 
 
 Dated the 
 
 who has been served with an order 
 to carry on and prosecute the proceed- 
 
 day of 
 
 (Signed) 
 (Address) 
 
 18 
 
 No. 80. 
 
 Entry of Appearance, by party served with notice, under Order 12, 
 
 Buie SO. 
 
 [Title, &o.] 
 
 Enter an appearance for to the notice issued in this action on 
 
 the day of 18 , by the defendant under the 
 
 Buleu of the Supreme Court, Order 12, Bule 20. 
 
 Dated the day of 18 . 
 
 (Signed) ' 
 
 (Address) 
 
 The said defendant require a statement of olaim to be 
 
 delivered. 
 
f 
 
 PBiECIPES. 
 
 No. 81. 
 
 Entry of Appearance to Cottntef-claim.— O. XVIIl., r. 7. 
 
 [Title, &o.] 
 
 Enter an appearant b for to the oounter-olaim of the above-named 
 
 defendant in this action. 
 
 [61] 
 
 Dated the 
 
 day of 
 
 ^Signed) 
 (Address) 
 
 18 
 
 a. The said 
 bioned in the 
 
 No. S2. 
 
 Mandanmt. — Sec. 16, s.-b. 8. 
 [Title, &0.J 
 
 Beqoired in pursuance of order dated a writ of mandamus directed 
 to commanding to returnable 
 
 Dated the 
 
 (Signed) 
 (Address) 
 
 day of 
 
 18 
 
 Solicitor for the 
 
 I of claim to be 
 
 No. 83. 
 
 Prohibition.— Sec. 16, s.-s. 8. 
 
 In the High Court of Justice, 
 Division. 
 
 In the matter of a certain 
 
 Between 
 
 now depending in the Court 
 Plaintiff, 
 Defendant. 
 
 and 
 
 Required a writ of prohibition directed to tho judge of the above-named 
 Court and to the above-named plaintiff to prohibit them from further 
 proceeding in the said 
 
 18 . 
 
 Dated the 
 
 day of 
 
 (Simed) 
 (Address) 
 
 
 Solicitor for the 
 
[52] 
 
 JUDICATURE ACT — FORMS. 
 
 No. 84. 
 
 Certiorari. — See Sec. 16, s.-s. 6. 
 
 [Title, &c.] 
 
 Bequired in pursuanoe of order dated a writ of certiorari directed to 
 Dated the day of 18 . 
 
 ^Signed) 
 (Address) 
 
 Solicitor for the 
 
 ^ 
 
 Ul'J 
 
 !M 
 
 i i^'.l! 
 
 No. S5. 
 
 Entry for Argument Generally. — O. XXXVI. 
 [Title, &o.] 
 
 Set down for argument the 
 
 Dated the day of 
 
 18 
 
 (Signed) 
 (Address) 
 
 No. 86. 
 
 Entry of Demurrer for Argument. — O. XXIV., r. 7. 
 
 [Title, &o.] 
 
 Enter for argument the demurrer of to the in this action. 
 
 Dated the day of 18 . 
 
 (Signed) 
 
 (Address) 
 
 No. 87. 
 
 Entry of Special Case. 
 [Title, &c.] 
 
 •iiM 
 
 Set down for argument the special case filed in this action on the 
 day of , 18 ; (or set down the dated the day of 
 
 18 , of Mr. the referee in this 
 
 for hearing as a special case). 
 
 Dated the day of 18 
 
 (Signed) 
 (Address) 
 
PRiECIPES. 
 
 [53] 
 
 ari directed to 
 
 in this action. 
 
 No. 88. 
 
 Search for 
 
 Dated the 
 
 Search. 
 [Title, &c.] 
 
 day of 18 
 
 (Signed) 
 (Address) 
 
 Agent for 
 
 Solicitor 
 
 No. 89. 
 
 Entry of Action for Trial— 0. XXXI., r, 2. 
 [Title, &c.] 
 
 Enter this action for trial. 
 
 Dated the day of 
 
 18 
 
 (Signed) 
 (Address) 
 
 No. 90. 
 
 Oommission to Examine Witnesses. — O. XXXIII. , r. 2. 
 
 [Title, Ac] 
 
 Required in pursuance of order dated a oommission to examine 
 
 witnesses directed to 
 
 Dated the day of 18 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 No. 91. 
 
 Habeas Corpus ad Testificandum. — O. XXXII., r. 1, 
 
 [Title, &c.] 
 
 Required in pursuance of ordei dated a writ of habeas corpus ad 
 
 testificandum directed to the to bring before 
 
 Dated the 
 
 ^Signed) 
 (Address) 
 
 day of 
 
 18 
 
 I 
 
 • iL 
 
 Solicitor for the 
 
 4 
 
[54] 
 
 No. 92. 
 
 JUDICATURE ACT — FORMS. 
 
 Entry of Appeal. — Sec. 39, 
 [Title, &o.] 
 
 Enter this appeal from the order [or judgment | of 
 action, dated the day of 18 
 
 (Signed) 
 (Address) 
 
 in this 
 
 mtii 
 
 \im 
 
 No. 93. 
 
 Fieri Faciaa.—O. XXXVIII., r. 9. 
 
 [Title. Ac] 
 
 Bequired a writ of fieri facias directed to the sherifif of to levy 
 
 against C. D. the sum of $ and interest 
 
 thereon at the rate of $ per centum per annum from the 
 
 day of [and $ costs] to 
 
 Judgment [or order] dated 
 Taxing master's certificate, dated 
 
 day of 
 
 day of 
 
 Dated the 
 
 day of 
 
 (Signed) 
 (Address) 
 
 Solicitor for the [party on whose behalf writ i» 
 to issue.] 
 
 No. 94. 
 
 Venditioni Exponas. — O. XXXVIII. , r. 9. 
 
 [Title, &o.] 
 
 Required a writ of venditioni exponas directed to the sherifif of 
 to sell the goods and of 0. D., taken under a writ of fieri 
 
 facias in this action tested day of 
 
 Dated the 
 
 day of 
 
 18 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 n»-' 
 
 :[■'! ! 
 
hehalf writ in 
 
 i.<^ I I A 
 
 PKiECIPES. 
 
 No. 95. 
 
 Writ of Sequestration.— O. XXXVUI., rr. 4, 9. 
 
 [Title, &0.J 
 
 Required a writ of sequestration against C. D. 
 
 at the suit oi A. B. directed to the sheriff of 
 Order dated day of 
 
 for not 
 
 Dated the 
 
 day of 
 
 18 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 No. 96. 
 
 Writ of Poaaeaaion. (Landa.) — O. XXXVIIL, rr. 3, 9. 
 
 [Title, &C.1 
 
 Required a writ of possession directed to the sheriff of 
 deliver possession to ^. B. of 
 Judgment dated day of 
 
 Dated the 
 
 day of 
 
 18 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 to 
 
 [56] 
 
 il- l:| 
 
 leriff of 
 
 3r a writ of fieri 
 
 No. 97. 
 
 Writ of Delivery. (Chattela.) - O. XXXVIIL, rr. 4, 9. 
 
 [Title, &C.1 
 
 -required a writ of delivery directed to the sheriff of 
 make delivery to A. B. of 
 
 Dated the 
 
 day of 
 
 18 
 
 (Signed) 
 (Address) 
 
 Solicitor for the 
 
 to 
 
': M 
 
 
 
 i 
 
 
 i 
 
 
 [56] 
 
 No. 98. 
 
 JUDICATURE ACT — FORMS. 
 
 Writ of Attachment.— O. XXXVIIL, rr. 4, 9. 
 [Title, &c.] 
 
 Requiit^ ■ 'i' iance of order dated 
 an attaoLiuoiii dii.'e>tt'^d to the slierifi of 
 not delivering to il. B. 
 
 Dalod th' ^ay of 18 
 
 ^&ignoc») 
 (Address) 
 
 Solicitor for the 
 
 day of 
 
 against 0. D. for 
 
 APPENDIX (F). 
 
 SUBPCENAS, &c., FOR EXAMINATION OF WITNESSES. 
 
 No. 99. 
 
 Subpcena ad Testificandum {Oeneral Form). — 0. XXXII. , r. 1. 
 
 In the High Court of Justice, 
 — — — Division. 
 
 Between 
 
 and 
 
 Plamtiff. 
 Defendant. 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to greeting : Wo com- 
 
 mand you to attend before at on day the day 
 
 of 18 , at the hour of in the noon, and so from 
 
 day to day, until the above cause is tried, to give evidence on behalf of 
 the (plaintiff or defendant ) 
 
 Witness, the Honourable 
 day of 188 
 
 President, dec, the 
 
 No. 100. 
 
 Subpoena Duces Tecum {General Form). — O. XXXIL, r. 1. 
 
 [Title, &o.] 
 
 Victorli hy the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of tho Faith, to greeting : We com- 
 
SUBPCENAS, COMMISSIONS. 
 
 [57] 
 
 it 0. D. for 
 
 mand yon io attend before at on day the 
 
 day of 18 , at the hour of in the noon, and so from 
 
 day to day until the above cause is tried, to give evidence on behalf of 
 the and also to bring with you and produce at the time and place 
 
 aforesaid (specify documents to be produced.) 
 
 Witness, the Honourable 
 day of 188 . 
 
 ?resident, &o., the 
 
 No. 101. 
 
 Subpoena ad Testifioandum at Assizes. — 0. XXXIL, r. 1. 
 
 [Title, &o.] 
 
 Victoria, by the Graoe of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to greeting : We com- 
 
 mand you to attend before our justices assigned to take the assizes in and 
 for the county of to be holdeu at on day the day 
 
 of 18 , at the hour of in the noon, and so from day to 
 
 day during the said assizes until the above cause is tried, to give evi- 
 dence on behalf of the 
 
 Witness, the Honourable 
 day of 188 . 
 
 President, &o., the 
 
 No. 102. 
 
 Supboena Duces Tecum at Assizes. — O. XXXII. , r. 1. 
 
 [Title, &c.] 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to grouting : We com- 
 
 mand you to attend before our justices assigned to take the assizes in and 
 for the county of to be holden at on day the day 
 
 of 18 , at the hour of in the noon, and so from day to 
 
 day during the said assizes, until the above cause is tried, to give evi- 
 dence on behalf of the , and also to bring with you and produce 
 at the time and place aforesaid [upecify documents to be produced.) 
 
 Witness, the Honourable 
 day of 
 
 President, &o., the 
 
 No. 103. 
 
 Commission to Examine Witnesses. — O. XXXHL, r. 2. 
 
 [Title, &c.] 
 
 Victoria, by the Grace of God of the United Kin-jdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to of 
 
 =( 
 
 f 
 
 fr 
 
 I 
 
 I 
 
 I 
 
[68] 
 
 JUDICATURE ACT — FORMS. 
 
 I 
 
 i) /•■3I 
 
 oommisBioner named by and on behalf of the and to 
 
 of a commissioner named by and on behalf of the 
 
 greeting : Knjw ye that we in confidence of your prudence and fidelity 
 have appointed you and by these presents give you power and authority 
 to examin') on interrogatories and viva voce as hereinafter mentioned 
 witnesses on behalf of the said and respectively 
 
 at before you or either of you. — And we command you as follows : 
 
 1. Both the said and the said shall be at liberty to examine 
 on interrogatories, and viva voce on the subject matter thereof or arising 
 out of the answers thereto, such witnesses as shall be produced on their 
 behalf with liberty to the other party to cross-examine the said witnesses 
 on cross-interrogatories and viva voce on the subject matters thereof or 
 arising out of the answers thereto, the party producing any witness for 
 examination being at liberty to re-examine him viva voce; and all such 
 additional viva voce questions, whether on exaim'nation, cross-examina- 
 tion, or re-examination, shall be reduced into writing, and with the 
 answers thereto shall be returned with the said commission. 
 
 2. Not less than 48 hours before the examination of any witness on 
 behalf of either of the said parties, notice in writing, signed by one 
 of you, the commissioner of the party on whose behalf the witness is to 
 be examined, and stating the time and place of the intended examination 
 and the names of the witnesses to be examined, shall be given to the other 
 party by delivering the notice to [name and address of the person 
 namied in the order for this purpose'] (or to a grown up person there) and 
 shall be given also to the commissioner of the other party at the address 
 aforesaid of such commissioner or to a grown up person for him at the 
 said last mentioned address, and if the commissioner of that party neglect 
 to attend pursuant to the notice, then you, the commissioner of the party 
 on whose behalf the notice is given, shall be at liberty to proceed with 
 and take the examination of the witness or witnesses ex parte, and 
 adjourn any meeting or meetings, or continue the same from day to day 
 until all the witnesses intended to be examined by virtue of the notice 
 have been examined, without giving any further or other notice of the 
 subsequent meeting or meetings. 
 
 8. In the event of any witness on his examination, cross-examination, or 
 re-examination producing any book, document, letter, paper, or writing, 
 and refusing for good cause to be stated in his deposition to part with the 
 original thereof, then a copy thereof, or extract therefrom, certified by the 
 commissioners or commissioner present and acting to be a true and 
 correct copy or extract shall be annexed to the witnesses' deposition. 
 
 4. Each witness to be examined under this commission shall be ex- 
 amine 1 on oath, affirmation, or otherwise in accordance with his religion 
 by or before the commissioners or commissioner present at the examina- 
 tion. 
 
 6. If any one or more of the witnesses do not understand the English 
 language (the interrogatories, cross-interrogatories, and viva voce ques- 
 tions, if any, being previously translated into the language T'nib which he 
 or they is or are conversant), then the examination shal' C3 taken in 
 English through the medium of an interpreter or interpreters to be 
 nominated by the commissioners or commissioner present at the exam- 
 ination, and to be previously sworn according to his or their several 
 religions by or before the said commissioners or commissioner truly to 
 interpret the questions to be put to the witness and his answers thereto. 
 
 6. The depositions to be taken under this commission shall be sub- 
 scribed by tne witness or witnesses, and by the commisBioners or com- 
 miBsioner who shall have taken ^he depositions. 
 
tT^ I I A 
 
 :j.^wr'j-H-Bi¥a i— ~'iV 
 
 SUBP(ENAS, COMMISSIONS. 
 
 7. The interrogatories, oross-interrogatories, and depositions, together 
 with any dooaments referred to therein, or certified copies thereof or 
 extracts therefrom, shall be sent to the of the Supreme Court 
 of Judicature on or before the day of inclosed in a oover 
 under the seals or seal of the commissioners or commissioner. 
 
 8. Before you or any of you, in any manner act in the execution hereoi 
 you shall severally take the oath hereon indorsed on the Holy Evangelists 
 or otherwise in such other manner as is sanctioned by the form of your 
 several religions and is considered by you respectively to be binding on 
 your respective consciences. 
 
 And we give you or any one of you authority to administer snob oath 
 to the other or others of you. 
 
 Witness, the Honourable President, &o., the day of 
 
 in the year of Our Lord one thousand eight hundred and 
 
 This writ was issued by 
 of 
 
 agent for 
 of 
 
 BoUcitor for the 
 who reside at 
 
 Co7nmi8tioner8' Oath. 
 
 Tou shall, according to the best of your skill and knowledge, truly and 
 faithfully, and without partiality to any or either of the parties in this 
 cause, take the examinations and depositions of all and every witness and 
 witnesses produced and examined by virtue of the commission within 
 written. So help you God. 
 
 Clerk's Oath. 
 
 Tou sLall truly, faithfully, and without partiality to any or either of 
 the parties in this cause, take, write down, transcribe, and engross all and 
 every the questions which shall be exhibited or put to all and eveiy 
 witness and witnesses, and also the depositions of aU and every such 
 witness and witnesses produced before and examined by the said com- 
 missioners named in the commission within written, as far forth as you 
 are directed and employed by the commissioners to take, write down, 
 transcribe or engross the said 4uestions and depositions. 
 
 So help you God. 
 
 Witnesses' Oath. 
 
 [59] 
 
 You are true answer to make to all such questions as shall be asked you, 
 without favour or affection to either party, and therein you shall speak 
 the truth, the whole truth, und nothing but the truth. So help you God. 
 
 Interpreter's Oath. 
 
 Tou shall truly and faithfully, and without partiality to any or either 
 of the parties in this cause, and to the best of your ability, interpret and 
 translate the oath or oaths, affirmation or affirmations which shall be 
 administered to, and all and every the questions which shall be exhibited 
 or put to all and every witness and witnesses produced before and exam- 
 ined by the commissioners named in the commission within written, as 
 far forth as you are directed and employed by the said commissioners, to 
 
I; m I 
 
 '■Z ': 
 
 • t- 
 
 i i 
 
 ;. 
 
 
 If • 
 
 [CO] 
 
 JUDICATURE ACT — FORMS. 
 
 interpret and translate the same out of the English into the language of 
 such witness or witnesses, and also in like manner to interpret and trans- 
 late the respective depositions taken and made to such questions out of 
 the language of such witness or witnesses into the English language. 
 So help you God. 
 
 Direction of Interrogatories, &;o., when returned hy the Commissioners. 
 
 The of the Supreme Gourt of Judicature, 
 
 Osgoode Hall, 
 
 Toronto. 
 
 No. 104. 
 
 Habeas Corpm ad Testificandum. — 0. XXXII., r. 1. 
 
 [Title, &c.] 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain 
 
 and Ireland Queen, Defender of the Faith, to the [keeper of our prison at] 
 
 We command you that you bring , who it is said is detained in 
 
 oui prison under your custody , before at on 
 
 day the day of at the hour of in the 
 
 noon, and so from day to day until the above action is tried, to give 
 
 evidence on behalf of the . And that immediately after the said 
 
 shall have so given his evidence you safely conduct him to the 
 
 prison from which he shall have been brought. 
 
 Witness, the Honourable 
 
 President, &c., the 
 
 day of 
 
 This writ was issued by 
 solicitor for the who reside at 
 
 APPENDIX (G). 
 
 CERTIORARI AND PROHIBITION. 
 
 No. 105. 
 
 Certiorari to Goimty Gourt. — See Sec. 16, s.-s. 6. 
 [Title, &c.] 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to the judge of the County 
 Court of greeting : 
 
 We, willing for certain causes to be certified of a certain cause pending 
 in our Court before you against at the suit of command you that 
 
f' V 
 
 Qissioners. 
 
 CERTIOKARI, PROHIBITION. 
 
 you send to us forthwith in the Division of our High Court of 
 
 Justice at Toronto, the proceedings in the said cause with all things 
 touching the same, as fully and ent' Ay as the same remain in our said 
 Court before you, by whatsoever names tlie parties may be called therein, 
 together with the writ, that we may further cause to be done thereupon 
 what of right we shall see fit to be done. 
 
 Witness, the Honourable 
 day of « 
 
 This writ was issued by 
 
 of 
 
 agent for 
 
 of 
 
 solicitor for the who reside at 
 
 President, &c., the 
 
 [61] 
 
 No. 106. 
 
 Gertiorari (Gemral). — See Sec. 16, s.-s. 6. 
 
 [Title, &c.] 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to the greeting : 
 
 We, willing for certain causes to be certified of command you 
 
 that you send to us in our High Court of Justice at Toronto, on the 
 day of the aforesaid, with all things touching the 
 
 same, as fully and entirely as they remain in together with this 
 
 writ, that we may further cause to be done thereupon what of ri^;'/* vq 
 shall see fit to be done. 
 
 Witness, the Honourable 
 day of 
 
 This writ was issued by 
 of 
 
 agent for 
 of 
 solicitor for the who reside at 
 
 President, &o., the 
 
 No. 107. 
 
 Prohibition, — Sec. 16, s.-s. 6. 
 
 [Title, &c.] 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to the [judge of the County 
 Court holden at] and to [name of plaintijff^] of greeting : 
 
 Whereas we have Deen given to understand that you the said 
 have [entered an action against] C. D. in the said Court, and that the said 
 

 [62] JUDICATURE ACT— FORMS. 
 
 Court has no jurisdiction in the said [cause] or to hear and determine the 
 said [action] by reason that [state facta shewing want of jurisdiction] . 
 
 We therefore hereby prohibit you from further proceeding in the said 
 [action] in the said Court. 
 
 Witness, the Honourable 
 day of 
 
 This writ was issued by 
 of 
 agent for 
 
 solicitor for the who reside at 
 
 Presiduut, &c., the 
 
 APPENDIX (H). 
 
 !l I 
 
 No. 108. 
 
 ORDERS. 
 
 Svmmam {Oetieral Form), — O. XUX., r. 11. 
 
 (For twc in outer counties. ) 
 
 In the High Court of Justice, 
 Division. 
 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Let all parties concerned attend before me at my Chambers on 
 day the day of 18 , at o'clock in the 
 
 noon, on the hearing of an application on the part of for {state 
 
 object of application, as m a notice of motion, according to forms in Ap- 
 pendix B). 
 
 Dated the day of 18 
 
 This summons was taken out by of solicitor, for 
 
 To 
 

 ORDERS. 
 
 No. 109. 
 
 Ch(k,(aenetalForm).-0. XLVIIL, r. 2 j O. XLIX., r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 , and upon reading the affidavit of 
 18 , and 
 
 Upon hearing 
 the day o. 
 
 It is ordered and that the costs of this application be 
 
 Dated the day of 18 
 
 filed 
 
 [63] 
 
 No. 110. 
 
 Order for Service out of Jurisdiction, — O. VII., r. 1. 
 
 In the High Court of Justice, 
 ■ Division. 
 
 [Name of the Judge or Master] in Chambers., 
 
 Between Plaintiff, 
 
 and 
 
 Defendant 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the plaintiff be at liberty to issue a writ for 
 
 service out of the jurisdiction against 
 
 And it is further ordered that the time for appearance to the said writ 
 be within days after the service thereof, and that the costs of this 
 
 application be 
 
 Dated the day of 18 
 
 No. 111. 
 
 Order for Substittited Service. — 0. VI., r. 2. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 and 
 
 Defendant. 
 
 Upon hearing and upon reading the affidavit of 
 
 the day of 18 , and 
 
 filed 
 
[64] 
 
 JUDICATURE ACT — POEMS. 
 
 It is ordered that service of a copy of this order, and of a copy of the writ 
 of summons in this action, by sending the same by a pre-paid and registered 
 post letter, addressed to the defendant at , shall be good and 
 
 Butlicient service of the writ. 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 113. 
 
 Order odloioing Service made out of the Jurisdiction. — 0. VII. , r. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the service of the writ {or notice of the writ) made 
 upon the defendant as shewn by the said affidavit, be allowed as good 
 and sufficient service. 
 
 Dated the 
 
 day of 
 
 18 
 
 m [i 
 
 m m 
 
 No. 113. 
 
 Order for Betiewal of Writ of Summotui. — O. V., r. 1 (&). 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 Defendant. 
 
 a\id 
 
 Upon hearing and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the writ in this action be renewed for 12 months 
 from the date of its renewal, pursuant to the Rules of the Supreme Court, 
 Order 5., Rule 1. 
 
 Dated the day of 18 
 
I \ ir\ 
 
 No. 114. 
 
 ORDEBS. 
 
 Order for Time.— O, LIL, r. 9. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master'] in Chambers. 
 Between Plaintiff, 
 
 Defendant. 
 
 mi 
 
 I 
 
 [66] 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the shall have time for, &c. and that 
 
 the costs of this application be 
 
 Dated the day of 18 
 
 No. 115. 
 
 Order under Order X. , No 1 (final judgment). 
 
 In the High Court of Justice, 
 Division. 
 
 [iVame of the Judge or Master] in Chambers. 
 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the plaintiff may sign final judgment in this action for 
 the amount indorsed on the writ, with interest, if any, and costs to be 
 taxed, and that the costs of this application be 
 
 Dated the day of 18 . 
 
 No. 116. 
 
 Order under Order X, No. 6 {learn to defend unconditionally). 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintift, 
 
 Defendant. 
 
 •Hd 
 
 filed 
 
 Upon hearing , and upon reading the affidavit of 
 
 the day of 18 , and 
 
 It is ordered that the defendant be at liberty to defend this action by 
 •delivering a statement of defence within days after delivery of 
 
 the plaintiff's statement of claim, and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 £ 
 
[66] 
 
 JUDICATURE ACT — FORMS. 
 
 No. 117. 
 
 Order under Order X. , No. 3 (leave to defend on payment into Court), 
 
 In the High Court of Justice. 
 Division. 
 
 [Name o/ the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that if the defendant pay into Court within a week 
 
 from the date of this order the sura of f , he be at liberty to defend 
 
 this action by delivering a statement of defence within days after 
 
 delivery of the plaintiff's statement of claim, but that if that sum be not so 
 paid the plaintiff be at liberty to sign final judgment for the amount 
 indorsed on the writ of summons, with interest, if any, and costs, and 
 that in either event the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 118. 
 
 Order under Order X. , Nos. J/., 6, (leave to defend as to part an payment into 
 Court, and as to residue unconditioiuiUy). 
 
 In the High Court of Justice, 
 Division. 
 
 [Nam£ of the Jiidfje or Master] in Chambers. 
 
 Between 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that if the defendant pay into Court within a week from 
 the date of this order the sum of $ , he be at liberty to defend this 
 
 action as to the whole of the plaintiffs claim. 
 
 And it is ordered that if that sum be not so paid the plaintiff be at 
 liberty to sign judgment for that sum and the defendant be at liberty to 
 defend this action as to the residue of the plaintiffs claim. 
 
 And it is ordered that in either event the statement of defence be 
 delivered within days after delivery of the plaintiffs statement of 
 
 claim, and that the costs of this application be 
 
 Dated the day of 18 . 
 
t<. I 1 ypv 
 
 ORDERS. 
 
 [67] 
 
 No. 119. 
 
 Ord&r to ame,nd Writ of Summons. — 0. IL, r. 6. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between PlaintiflF, 
 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that the plaintiff be at liberty to amend the writ of sum- 
 mons in this action by , and that the costs of this application 
 be 
 
 Dated the day of 18 
 
 No. 120. 
 
 Order for ruimes of Partners.— O. XXL, r. 12. 
 
 In the High Court of Justice, 
 Division. 
 
 [JVame of the Judge or Master"] in Chambers. 
 
 Between 
 
 and 
 
 Plaintiflf, 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that the furnish the with a statement in 
 
 writing, verified by affidavit, setting forth the names of the persons 
 
 coistituting the members or co-partners of their firm, pursuant to the 
 
 rule of the Supreme Court, and that the costs of this 
 
 application be 
 
 Dated the day of 18 
 
 No. 131. 
 
 Order for Particulars (General). 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 
 * Between PlaintiflF, 
 
 and 
 
 Defendant. 
 
 Upon hearing , and upon reading the affidavit of 
 
 day of 18 , and 
 
 filed the 
 
! y 
 
 [68] 
 
 JUDICATURE ACT — FORMS. 
 
 It is ordered that the plaintiff deliver to the defendant an account 
 
 in writing of the particulars of the plaintiff's claim in this action, 
 and that unless such particulars be delivered within days from the 
 
 date of this order all further proceedings be stayed until the delivery 
 thereof, and that the costs of this application be 
 
 Dated the 
 
 No. 133. 
 
 day of 
 
 18 
 
 Order for Particulars {Accident Case). 
 
 In the High Court of Justice, 
 Division. 
 
 \Ncume of the Judge or Master,] in Chambers. 
 Between Plaintiff, 
 
 Defendant. 
 , and upon reading the affidavit of 
 
 and 
 
 Upon hearing 
 filed the day of 18 , and 
 
 It is ordered that the plaintiff deliver to the defendant an account in 
 writing of the particulars of the injuries and exx)enses mentioned in the 
 statement of claim, together with the time and place of the accident, 
 and the particular acts of negligence complained of, and that unless 
 such particulars be delivered within days from the date of this 
 
 order all further proceedings in this action be stayed until the delivery 
 thereof, and that the costs of this application be 
 
 Dated the day of 18 
 
 No. 123. 
 
 Order to Discharge or Vary Order on Application by Third Party. - 
 
 O. XLIV. 
 
 1^: 
 
 ...:.|,.-'-:| 
 
 1 
 
 iMJ 1 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 Upon hearing , and upon reading the affidavit of 
 
 filed the day of 18 , and 
 
 It is ordered that the order of in this action dated the 
 
 day of 18 be discharged [or varied by ], anci that the 
 
 costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
VO I I A 
 
 ORDERS. 
 
 No. 124. 
 
 Order to Dismiss for want of Prosecution. — O. XXV. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 Between Plaintifif, 
 
 Defendant. 
 
 and 
 
 [69] 
 
 Upon hearing , and upon reading the aifidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that this action be, for want of prosecution, dismissed 
 with costs, to be taxed and paid to the defendant by the plaintiff, and 
 that the costs of this application be (costs in the cause) 
 
 Dated the day of 18 
 
 No. 125. 
 
 Order for Production under Order 27, B. 4. 
 
 In the High Court of Justice, 
 Division. 
 
 \Name of the Judge or Master,] in Chambers. 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 Upon hearing 
 
 It is ordered that the do, within 10 days after the service of 
 
 this order, make discovery on oath of the documents which are or have 
 been in possession or power relating to any matters in question 
 
 in this action and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 126. 
 
 Order to Produce Documents for Inspection under Order 27, B. 15-20. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintifif, 
 
 Upon hearing 
 the day of 
 
 and 
 
 Defendant. 
 
 , and upon reading the afi&davit of 
 18 , and 
 
 filed 
 
[70] 
 
 JUDICATURE ACT — FORMS. 
 
 It is ordered that the do, at all seasonable times, on reasonable 
 
 notice, produce at the office of solicitor, situate at the 
 
 following documents, namely and that the be at Uberty 
 
 to inspect and peruse the dooumeints so produced and to take copies and 
 abstracts thereof and extracts therefrom, at expense, and that in 
 
 the meantime all further proceedings be stayed, and that the costs of 
 this appUcation be 
 
 Dated the day of 18 . 
 
 No. 187. 
 
 Order of Reference. — See Notes to Sec. 47. 
 
 > iifi 
 
 SSf! 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,'\ in Chambers. 
 
 Between 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 Upon hearing and by consent 
 
 It is ordered as follows : 
 
 [State matters to he referred] shall be referred to the award of 
 who shall make and publish his award in writing on or before the 
 next, or on or before such further day as he may from time to time 
 appoint and signify in writing signed by him and indorsed on this order 
 and the costs of the said cause and the costs of 
 
 the reference and award shall be 
 
 Dated the day of 18 
 
 I 
 
 No. 138. 
 
 Order to remove Jvdgmentfrom County Court. — See Sec. 16, s.-s. 6. 
 
 In the High Court of Justice, 
 Division. 
 
 [JVame of the Judge or Master,] in Chambers. 
 
 In the matter of a certain cause in the County Court of 
 wherein 
 
 Plaintiff, 
 and 
 
 Defendant. 
 
 Upon reading the affidavit of filed the day of 
 
 18 , and , and the certified copy of the judgment in the cause 
 
 above mentioned. 
 
 It is ordered that a writ of certiorari issue to remove the said judgment 
 from the above-named County Court into the Division of the High 
 
 Court of Justice. 
 
 Dated the 
 
 day of 
 
 18 
 
"■ iii^ii^'- 
 
 I 1 ir\ 
 
 ORDEBS. 
 
 No. 139. 
 
 Order for Commission to Exxmine Witnesses.— O, XXXIIl., rr. 3, 15. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 
 Between Plaintiff, 
 
 Defendant. 
 
 [71] 
 
 and 
 
 Upon hearing and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered as follows : 
 
 1. A commission may issue directed to of a commissioner 
 named by and on behalf of the and to of a commissioner 
 named by and on behalf of the for the examination upon interro- 
 gatories and viva voce of witnesses bn behalf of the said and 
 respectively at aforesaid before the said commissioners. 
 
 2. days previously to the sending out of the said commission, the 
 soUcitor of the said shall give to the solicitor of the said 
 notice in writing of the mail or other conveyance by which the commis- 
 sion is to be sent out. 
 
 3. The costs of this order, and of the commission to be issued in pur- 
 suance hereof, and of the interrogatories, cross-interrogatories, and depo- 
 sitions to be taken thereunder, together with any dociament, copy, or 
 extract and the official copies thereof, and all other costs incidental thereto, 
 shall be 
 
 Dated the day of 18 . 
 
 No. 130. 
 
 Order of Reference under S, Jfl of the Act. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the J;idge or Master,] in Chambers. 
 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 1 the cause 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that the following question arising in this action namely, 
 be referred for inquiry and report to under section 47 of the 
 
 Judicature Act, and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
,v . 
 
 \ [ 
 
 It 
 
 III ! 
 
 
 ■ t: 
 
 [72] 
 
 No. 131. 
 
 JUDICATURE ACT — FORMS. 
 
 Ordiar of Beference under S. 48 of the Act. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 
 Between Flaintifi, 
 
 and 
 
 Defendant. 
 Upon hearing and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the [state whether all or some and, if so, which of the 
 questions are to be tried] in this action be tried by 
 And it is ordered that the costs of this application be 
 
 Dated the day of 18 . 
 
 No. 133. 
 
 Order of Beference to Master. — See Notes to Sec. 47 ; O. XXIX. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master,] in Chambers. 
 Between Plainti£f, 
 
 and 
 
 Defendant. 
 
 filed 
 
 Upon hearing , and upon reading the affidavit of 
 
 the day of 18 , and 
 
 It is ordered that this action [or the matters of account in this action, 
 01' the following questions in this action being matters of account, namely, 
 stating them] be referred to the certificate of 
 
 , with all the powers as to certifying and 
 amending of a Judge of the High Court of Justice, and that the costs of 
 the and of the reference be in the discretion of the said , 
 
 and that the costs of this application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 133. 
 
 Order for Examination of Witnesses before Trial. — O. XXXII., r. 1. 
 
 In the High Court of Justice, 
 Division. 
 
 [Nam* of the Judge or Master,] in Chambers. 
 
 Between Plaintiff, 
 
 Defendant. 
 
 and 
 
 Upon hearing 
 the day of 
 
 and upon reading the affidavit of 
 18 , and 
 
 filed 
 
m 
 
 ■■'iiiliiSR*'- 
 
 I I A 
 
 OBDEBS. 
 
 It is ordered that a witness on behalf of the be examined 
 
 viva voce (on oath or affirmation) before 
 
 [or before esquire, special examiner], the 
 
 solicitor or agent giving to the solicitor or agent notice in 
 
 writing of the time and place where the examination is to take place. 
 
 And it is further ordered that the examination so taken be filed in the 
 Office of , and that an office copy or copies thereof may be 
 
 read and given in evidence on the trial of this cause, saving all just excep- 
 tions, without any further proof of the absence of the said witness than 
 the affidavit of the solicitor or agent of the as to his belief, and 
 
 that the costs of this application be 
 
 Dated the day of 18 
 
 [73] 
 
 -0. XLL, r. 5. 
 
 No. 134. 
 
 Oarnishee Order (Attaching Debt). 
 
 In the High Court of Justice, 
 Division 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Judgment Creditor, 
 
 and 
 
 Judgment Debtor. 
 
 Garnishee. 
 
 Upon hearing , and upon reading the affidavit of , filed 
 
 the day of 18 , and 
 
 It is ordered that all debts owing or accruing dae from the above- 
 named garnishee to the above-named judgment debtor be attached to 
 answer a judgment recovered against the said judgment debtor by the 
 above-named judgment creditor in the High Court of Justice ou the 
 
 day of 18 , for the sum of $ , on which judgment 
 
 the said sum of $ , remains due and unpaid. 
 
 And it is further ordered that the said garnishee attend the 
 in Chambers (or as ^^e cose ma// &«) on day the day of 
 
 18 , at o'clock in the noon, on an applica- 
 
 tion by the said judgment creditor, that the said garnishee pay the debt 
 due from him to the said judgment debtor, or so much thereof as may 
 be sufficient to satisfy the judgment. 
 
 And that the costs of this application be 
 
 Dated the 
 
 dayot 
 
 18 
 
 No. 135. 
 
 Garnishee Order (Absolute). — 0. XLL, rr. 7, 10. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master} in Chambers. 
 Between Judgment Creditor, 
 
 Upon hearing 
 the day of 
 
 ^ and 
 
 ^ Judgment Debtor. 
 
 Garnishee. 
 , and apon reading the affidavit of filed 
 
 18 , and whereby it was ordered 
 
[74] JUDICATURE ACT — FORMS. 
 
 that all debts owing or aooriiing due from the above-named garnishee to 
 the above-named judgment debtor should be attached to answer a judg- 
 ment recovered against the said judgment debtor by the above-named 
 judgment creditor in the High Court of Justice on the day of 
 
 18 , for the sum of $ , on which judgment the said 
 
 sum of 9 remained due and unpaid. 
 
 It is ordered that the said garnishee do forthwith pay the said judg- 
 ment creditor the debt due from him to' the said judgment debtor (or so 
 much thereof as may be sufficient to satisfy the judgment debt), and that 
 in default thereof ezeoution may issue for the same, and that the costs 
 of this application be 
 
 Dated the day of 18 
 
 No. 136. 
 
 Order on Application to tax Solicitor's Bill of Coats. — O. L., r. 17. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 In the matter of 
 
 Gentleman, 
 One of the Solicitors of the Supreme Court. 
 
 Upon application of 
 It is ordered that the bill of fees, charges and disbursements delivered to 
 the appUcant by the above-named soUcitor {or by the above solicitor to 
 as the case may be) be referred to the to be taxed, 
 
 and that the said do take an account of all sums of money 
 
 received by the said solicitor of or on account of the applicant- 
 
 And it is ordered that the costs of this application be 
 
 Dated the day of 18 
 
 No. 137. 
 
 Order to try Action in Goimty Court. — See Notes to Sec. 76. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintift, 
 
 Defendant. 
 
 and 
 
 Upon hearing , and upon reading tl^ affidavit of hied the 
 
 day of 18 , and . W 
 
 It is ordered that this action be tried before the County Court of 
 
 , and thikt the costs of this application be 
 
 Dated the day of 18 
 

 ORDERS. 
 
 No. 13«. 
 
 Order for Examination touchiiig Means. — O. XLL, r. 1. 
 
 In the High Court of Justice, 
 
 Division. 
 
 Judge in Chambers. 
 
 Between Judgment Creditor, 
 
 and 
 
 Judgment Debtor. 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that the above named do attend before the in 
 
 Chambers on l\ie day of next, at in the noon, to 
 
 be examined upon oath touching his means of paying the judgment debt, 
 and that the costs of this application be 
 
 [76] 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 139. 
 
 Interpleader Order, No. 1. — O. I., r. 2. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between Plaintiff, 
 
 and 
 
 and between 
 
 and 
 
 Defendant, 
 Claimant, 
 
 Bespondent. 
 
 Upon hearing , and upon reading the affidavit of filed 
 
 the day of 18 , and 
 
 It is ordered that the claimant be barred, that no action be brought 
 against the above-named [sheriff] , and that the costs of this 
 
 application be 
 
 Dated the 
 
 day of 
 
 18 
 
 No. 140. 
 
 Interpleader Order, No. 2. — O. I., r. 2. 
 
 In the Higu Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 Between Plaintiff, 
 
 and 
 and 
 
 Defendant, 
 
 Upon hearing 
 day of 
 
 Claimant. 
 
 , and upon reading the affidavit of filed the 
 
 18 , and 
 
 n 
 
[76] 
 
 JUDICATURE ACT — FORMS. 
 
 
 I J : :s 
 
 mm 
 
 II >l 
 
 It is ordered that the above-named claimant be substituted as defendant 
 in this action in lieu of the present defendunt, and that the costs of this 
 application be 
 
 Dated the day of 18 
 
 No. 141. 
 
 Interpleader Order, No. 3. — 0. I. , r. 2. 
 
 In the High Court of Justice. 
 Division. 
 
 and the said 
 the sheriff of 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 and 
 
 Defendant, 
 and between 
 
 Claimant, 
 
 execution creditor, and 
 
 Bespon dents. 
 
 Upon hearing , and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that the said sheriff proceed to sell the goods seized by 
 him under the writ of fieri facias issued herein, and pay the net proceeds 
 of the sale, after deducting the expenses thereof, into Court in this cause, 
 to abide further order herein. 
 
 And it is further ordered that the parties proceed to the trial of an 
 issue in the High Court of Justice, in which the said claimant sbnll ^ '^ 
 the plaintiff and the said execution creditor shall be the deienri ut, ai. 
 that the question to be tried shall be whether at the time ' *' seizure 
 and sale by the sheriff the goods seized were the prope* ' ue claim- 
 
 ant as against the execution creditor. 
 
 And it is further ordered that this issue be prepared i delivered by 
 the plaintiff therein within from this date, and be xolumed by the 
 
 defendant therein within days, and be tried at 
 
 And it is further ordered that the question of costs and all further 
 questions be reserved until after the trial of the said issue, and that uo 
 action shall be brought against the said sheriff for the seizure of the said 
 goods. 
 
 Dated the day of 18 . 
 
 No. 143. 
 
 Interpleader Order, No. 4- — 0. I., r. 2. 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 and the said 
 the sheriff of 
 
 Upon hearing 
 day of 
 
 and 
 
 and between 
 
 execution creditor, and 
 
 Defendaui/, 
 Claimant, 
 
 Respondents. 
 
 , and upon reading the affidavit of filed the 
 
 18 ,and 
 
ir^> I 1 A 
 
 ORDERS. 
 
 It is ordered that upon payment of the sum of $ into Court by 
 
 the said claimant within from this date, or upon his g ving within 
 
 the same time security to the satisfaction of 
 
 for the payment of the same amount by the said claimant 
 according to the directions of any order to be made herein, and upon 
 payment to the above-named sheriff of the possession money from this 
 date, the said sheriff do withdraw from the possession of the goods seized 
 by him under the writ of fieri facias herein. 
 
 And it is further ordered that unless such payment be made or security 
 given within the time aforesaid the said sheriff proceed to sell the said 
 goods, and pay the proceeds of the sale, after deducting the expenses 
 thereof and the possession money from this date, into Court in the cause, 
 to abide further order herein. 
 
 And it is further ordered that the parties proceed to the trial of an 
 issue in the High Court of Justice, in which the claimant shall be plaintiff 
 and the execution creditor shall be defendant, and that the question to 
 be tried shall be whether at the time of seizure and sale by the 
 sheriff the goods seized were the property of the claimant as against the 
 execution creditor. 
 
 And it is further ordered that this issue be prepared and delivered by 
 the plaintiff therein within from this date, and be returned by the 
 
 defendant therein within days, and be tried at 
 
 And it is further ordered that the question of costs and all further 
 questions be reserved until after the trial of the said issue, and that no 
 action shall be brought against the sheriff for the seizure of the said goods. 
 
 Dated the day of 18 
 
 No. 143. 
 
 Interpleader Order, No. 6, — O. I., r. 2. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 and 
 
 Defendant, 
 and between 
 
 Claimant, 
 and the said execution creditor, and 
 
 the sheriff of 
 
 Respondents. 
 
 Upon hearing and upon reading the affidavit of filed the 
 
 day of 18 , and 
 
 It is ordered that upon payment of the sum of $ into court by the 
 
 said claimant, or upon his giving security to the satisfaction of 
 
 for the payment of the same amount by 
 the claimant according to the directions of any order to be made herein, 
 the above-named sheriff withdraw from the possession of the goods seized 
 by him under the writ of fieri facias issued herein. 
 
 And it is further ordered that in the meantime, and until such payment 
 made or security given, the sheriff continue in possession of the goods, 
 and the claimant pay possession money for the time he so continues, 
 unless the claimant desires the goods to be sold by the sheriff, in which 
 case the sheriff is to sell them and pay the proceeds of the sale, after 
 
 [77] 
 
f! 
 
 !i 
 
 ■I 
 
 [78] JUDICATURE ACT — FO:^MS. 
 
 deducting the expenses thereof and the possession money from this date, 
 into Court in the cause, to abide further order herein. 
 
 And it is further ordered that the parties proceed to the trial of an 
 issue in the High Court of Justice, in which the claimant shall be plain- 
 tiff and the execution creditor shall be defendant, and that the question 
 to be tried shall be whether at the time of the delivery of che said writ 
 to the sheriff the goods seized were the property of the claimant as against 
 the execution creditor. 
 
 And is further ordered that this issue be prepared and delivered by the 
 plaintiff therein within from this date, and be returned by the 
 
 defendant therein within days, and be tried at 
 
 And it is further ordered that the question of costs and all further 
 questions be reserved until after the trial of the said issue, and that no 
 action shall be brought against the sheriff for the seizure of the said 
 goods. 
 
 Dated the day of 18 
 
 ■111! 
 
 No. 144. 
 
 Interpleader Order, No. 6. — O. I., r. 2. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Jtidge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 and 
 
 Defendant, 
 and between 
 
 Claimant 
 and the said execution creditor and 
 
 the sheriff of Respondents. 
 
 The claimant and the execution creditor having requested and consented 
 that the merits of the claim made by the claimant be disposed of and 
 determined in a summary manner, now upon hearing and upon 
 
 reading the affidavit of tiled the day of 18 , and 
 
 It is ordered that 
 
 And that the costs of this application be 
 
 Dated the day of 
 
 18 
 
 No. 145. 
 
 Interpleader Order, No. 7. — 0. I., r. 2. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master"] in Chambers. 
 Between Plaintiff, 
 
 and the said 
 the sheriff of 
 
 Upon Ijearing 
 the day of 
 
 and 
 
 and between 
 
 execution creditor and 
 
 Defendant, 
 Claimart, 
 
 Respondents. 
 , and upon reading the affidavit of filed 
 
 18 ,and 
 
 J. 
 
/T. I I A 
 
 ORDEBS, JUDGMENTS. 
 
 [79] 
 
 }m this date, 
 
 e trial of an 
 lall be plain- 
 the question 
 the said writ 
 ,nt as against 
 
 ivered by the 
 umed by the 
 
 id all further 
 and that no 
 of the said 
 
 18 
 
 It, 
 
 Respondents. 
 
 md consented 
 iposed of and 
 
 and upon 
 
 , and 
 
 18 
 
 tit, 
 
 Respondents, 
 filed 
 
 It is ordered that the above-named sheriff proceed to sell enough of the 
 goods seized under the writ of fieri facias issued in this action to satisfy 
 the expenses of the said sale, the rent (if any) due, the claim of the 
 claimant, and this execution. 
 
 And it is further ordered that out of the proceeds of the said sale, (after 
 deducting the expenses thereof, and rent, if any,) the said sheriff pay to 
 the claimant the amount of his said claim, and to the exe . uion creditor 
 the amount of his execution, and the residue, if any, to the rlefendant. 
 
 And it is further ordered that no action be brought against the said 
 sheriff, and that the costs of this application be 
 
 Dated the day of 18 
 
 No. 146. 
 
 Order dismissing Motion (Oen,erally). — O. XLVII., r. 1 ; O. XLVIII,,r. 2. 
 
 In the High Court of Justice, 
 Division. 
 
 [Name of the Judge or Master] in Chambers. 
 
 Between Plaintiff, 
 
 and 
 
 Defendant. 
 
 filed 
 
 Upon hearing , and upon reading the affidavit of 
 
 the day of 18 ,• and 
 
 It is orde.-ed that the application of be dismissed, {if the dis- 
 
 missal is with costs add), with costs to be taxed and paid by the 
 to the 
 
 Dated the day of 18 
 
 APPENDIX (I). 
 
 FORMS OF JUDGMENT. 
 
 No. 147. 
 
 Default of Appearance or Defence in case of Liguidated Demand. — 
 O. IX., r. 4; O. XXV., r. 2. 
 
 In the High Court of Justice, 
 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 G. D. and E. F., Defendants. 
 
 The day of 1ft 
 
 Tlie defendants [or the defendant C. D.] not having appeared herein 
 [or not having delivered any statement of defence], it is this day adjudged 
 that the plaintiff recover against the said defendant $ ^ , and 
 
 coats to be taxed. 
 
318:2 
 
 f'j ■ 
 
 • , i 
 
 j I 
 
 W- i 
 
 a 
 
 [80] 
 
 JUDICATURE ACT — FORMS. 
 
 No. 148. 
 
 Judgment in Default of Appearance or Defence where the Demand is 
 Liquidated (Fi^ed costs).— O. IX., r. 6 ; O. XXV,, r. 2. 
 
 The 
 
 day of 
 
 [Title, &c.] 
 ,18 
 
 The defendant not having (appeared to the writ of summons 
 
 or delivered any statement of defence or demurrer) it is this day ad- 
 judged that the plaintiff recover against the said defendant $ and 
 $ costs. 
 
 No. 149. 
 
 Judgment in Default of Appearance in action for Recovery of Land. — 
 
 O. IX., r. VIII. 
 
 The 
 
 day of 
 
 [Title, &c.] 
 18 
 
 No appearance having been entered to the writ of summons herein, it 
 is this day adjudged that the plaintiff recover possession of the land in 
 the said writ mentioned. 
 
 No. 150. 
 
 Judgment in Default of Defence in action for Recovery of Land. — 
 
 O. XXV., r. 7. 
 
 [Title, Ac] 
 
 The day of , 18 . 
 
 No statement of defence having been delivered herein, it is this 
 day adjudged that the pxaintiff recover possession of the land in the state- 
 ment of claim herein mentioned and described as 
 
 No. 151. 
 
 Judgment in Default of Defence in Action for Recovery of Land udth 
 Damuges.—O. XXV., r. 8. 
 
 The 
 
 day of 
 
 [Title, &c.] 
 ,18 
 
 The defendant not having delivered any statement of defence, it is this 
 day adjudged that the plaintiffs recover possession of the land in the 
 
■-.*t4*^i.- ■ 
 
 i<> I I A 
 
 JUDGMENTS. 
 
 statement or ulaim herein mentioned, and described as , 
 
 , in the County of , and costs to be taxed, 
 
 and it is further adjudged that the plaintiflFa recover against the defendant 
 damages to be assessed. 
 
 Certificate for $ 
 of ,18 
 
 , taxed costs, dated the 
 
 day 
 
 [81] 
 
 No. 152. 
 
 Interlocutory Judgment in Default of Appearance or Defence where Demand 
 Unliquidated. — 0. XXV., r. 4. 
 
 [Title, &c.] 
 
 The 
 
 day of 
 
 18 
 
 No appearance having been entered to the writ of summons (or no state- 
 ment of defence or demurrer having been delivered by the defendant) herein; 
 
 It is this day adjudged that the plaintiff recover against the defendant 
 the value of the goods or damages, or both, as the case may be, to be assessed. 
 
 1, it is this 
 in the state- 
 
 No. 153. 
 
 Judgment after Appearance and Order under Order X,, Rule 1. 
 
 [Title, &c.] 
 
 The 
 
 18 
 
 day of 
 
 The defendant having appeared to the writ of summons herein, and the 
 plaintiff having by the order of , dated day of 
 
 18 , obtained leave to sign judgment under the Rule of the Supreme 
 Court, No. 80, for (recite order). It is this day adjudged that the 
 plaintiff' recover against the defendant $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 a Master's Certificate dated the day of 
 
 18 
 
 , as appears by 
 
 No. 154. 
 
 Judgment in Default of Appearance or Defence, after Assessment of 
 Damages. — O. IX., r. 7. 
 
 The 
 
 day of 
 
 [Title, &c.] 
 ,18 
 
 No appearance having been entered to the writ of summons [or no 
 statement of defence or demurrer having been delivered by the defendant] 
 herein, and the damages which the plaintiff was entitled to recover hav- 
 ing been assessed at $ , as by dated tlie 
 
 18 , appears, it is adjudged that the plaintiff' recover 
 9 and costs to be taxed. 
 
 F 
 
[82] 
 
 JUDICATURE ACT— FOBMS. 
 
 No. 165. 
 
 Judgment after Trial by Court without Jury. — 0. XXXI. , r. 20. 
 
 The 
 
 day of 
 
 (No. 1.) 
 
 [Title, &c.] 
 18 . 
 
 This option having on the 
 and the said on the 
 
 that judgment be entered for the 
 
 It is this day adjudged that the 
 and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 a taxing olficer's Certificate dated the day of 
 
 day of 
 day of 
 for$ 
 recover from the 
 
 18 , been trie^ before 
 18 , having ordered 
 
 , as appears by 
 
 18 
 
 ■I , * (I !■' 
 
 (■ 
 
 i 
 
 No. 156. 
 
 Judgment at Trial by Judge without a Jury. 
 
 (No. 2). 
 
 -O. XXXI., r. 20. 
 
 The 
 
 day of 
 
 (Title, &c.] 
 ,18 
 
 The action coming on for trial [the day of and] 
 
 this day, before in the presence of counsel for the plain- 
 
 tiff and the defendants [or, if some of the defendants do not appear, for 
 the plaintiff and the defendant C. D., no one appearing for the defend- 
 ants E. F. and Q. H., although they were duly served with notice of trial 
 as by the affidavit of filed the day of appears,] 
 
 upon hearing read the pleadings and what was alleged by counsel on 
 both sides, this Court doth declare, &c. 
 
 And this Court doth order and adjudge, &o. 
 
 
 No. 157. 
 
 Judgment after Trial by a Jury. — O. XXXI., r. 20. 
 
 [Title, &o.] 
 
 The 
 
 day of , It » 
 
 The action having on the 12th and 18th November, 18 , been tried 
 before the Honourable Mr. Justice and a special jury of the 
 
 county of , and the jury having found [state findings a? in 
 
 Judge's or officer's certificate] , and the said Mr. Justice having 
 
 ordered that judgment be entered for the plaintiff for $ and costs of 
 
 suit [or as the case may be] : Therefore it is adjudged that the plaintiff 
 recover against the defendant $ and 9 for his costs of 
 
 suit \or that the plaintiff recover nothing against the defendant, and 
 ibat tne defendant recover against the plaintiff 9 for his costs of 
 
 defence, or at the case may be.] 
 

 tT. I 1 A 
 
 JUDGMENTS. 
 
 No. 158. 
 
 Judgment after Trial before Bejeree. — See notes to sec. 47. 
 
 [Title, &c.] 
 
 [83] 
 
 The 
 
 day of 
 
 18 
 
 The action having on the 27th November, 18 , been tried before X. T., 
 Esq., an official [or special] referee ; and the said X. Y., having found 
 [state substance of referee's certificate], it is this day adjudged that 
 
 No. 159. 
 
 Judgment after Trial of Questions of Account by Referee. — See notes to 
 
 sec. 47 ; sec. 48 ; 0. XXXVI. , r. 4 ; O. XXXVII. , r. 5 ; 
 
 Form No. 167. 
 
 [Title, &c.] 
 
 The day of 18 . 
 
 The questions of account in this action having been referred to 
 
 and he having found that there is due from the to the the 
 
 sum of $ and directed that the do pay the costs of the reference. 
 
 It is this day adjudged that the recover against the said 
 
 $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ , as appears by 
 
 a taking officer's Certificate dated the day of 18 . 
 
 No. 160. 
 
 Judgment on Motion Generally. — 0. XXXVI., r. 1. 
 [Title, &c.] 
 
 The day of 18 . (Date of ord^r of Court.) 
 
 This action having on the day of 18 , come on before 
 
 the Court on motion for judgment on behalf of the , and the Court 
 
 after hearing counsel for the having ordered that {as in order 
 
 of Court). 
 It is this day adjudged that the recover against the 
 
 the sum of $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 a taxing officer's Certificate dated the day of 
 
 , as appears by 
 18 . 
 
[84] 
 
 !■"! 
 
 li^i ! 
 
 tt I II 
 
 R H II 
 
 I i 11 
 
 '" K' '; H ll 
 
 I III 
 
 JUDICATURE ACT — FORMS. 
 
 No. 161. 
 
 Judgment in pursuance of oider. (For use where leave had been given to 
 sign judgment unless some condition should be cc':vpli(d with.) — 
 
 The 
 
 day of 
 
 0. X.,r. 6. 
 
 [Title, &c.] 
 
 18 . 
 
 Pursuant to the order of dated 18 whereby it was 
 
 ordered and default having been made 
 
 It is this day adjudged that the plaintiff recover against the said defen- 
 dant $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ , as appears by 
 
 a taking officer's Certificate dated the day of 18 . 
 
 No. 16a. 
 
 Judgment in pursuance of order. (For use where leuve has been given to 
 sign judgment unless money should be paid into Court.) — O. X., r. 3. 
 
 The 
 
 day of 
 
 [Title, &c.] 
 ]8 . 
 
 Pursuant to the order of dated the day of 
 
 18 , whereby it was ordered that unless $ be paid into Court 
 
 by the defendant within a week, the plaintiff be at liberty to sign final 
 judgment for amount indorsed on the writ of summons with interest, if 
 any, and costs ; and the said defendant not having paid into Court the 
 said sum of $ , as conditioned by the said order, it is this day 
 
 adjudged that the plaintiff recover against the defendant $ and 
 
 $ for costs. 
 
 Certificate for costs dated the day of 18 . 
 
 No. 163. 
 
 Judgment on Certificate of Clerk of County Court. — See notes to sec. 47. 
 
 [Title, i&c] 
 
 The 
 
 day of 
 
 18 
 
 This action having been ordered to be tried in the County Court of 
 and the Clerk of that Court having certified that the result was 
 
 It is this day adjudged that recover against $ and 
 
 costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 a taxing officer's Certificate dated the day of 
 
 , as appears by 
 18 . 
 

 JUDGMENTS. 
 
 No. 164. 
 
 Judgment for Defendant's Costs on Discontinuance. — 0. XIX., r. 1. 
 
 [Title, &c.] 
 
 The 
 
 day of 
 
 18 
 
 The plaintiff having by a notice in writing dated the day of 
 
 18 , wholly discontinued this action, [or withdrawn his 
 claim in this action for or withdrawn so much of nis claim in this 
 action as relates to — or as the case may be.] 
 
 It is this day adjudged that the defendant recover against the plaintiff 
 costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 a taxing officer's Certificate dated the day of 
 
 , as appears by 
 18 
 
 [85] 
 
 3 r- 
 
 s '-• 
 
 No. 165. 
 
 Judgment for Plaintiff's Costs after Confession of Defence. - 
 
 0- XVI., r. 7. 
 
 [Title, &c.] 
 
 The 
 
 day of 
 
 18 
 
 The defendant ia his statement of defence herein having alleged a 
 ground of defence which arose after the commencement of this action, 
 and the plaintiff having on the day of 18 delivered a 
 
 confession of that defence. 
 
 It is this day adjudgeid that the plaintiff recover against the defendant 
 costs to be taxed. 
 
 The above costs have been taxed and allowed at % 
 a taxing officer's Certificate dated the day of 
 
 , as appears by 
 18 
 
 No. 166. 
 
 Judgment for Costs after Acceptance of Money paid into Court. 
 
 O. XXVI., r. 1. 
 
 [Title, &c. j 
 
 The day of 18 
 
 The defendant having paid into court in this action the sum of $ 
 in satisfaction of the plaintiff's claim, and the plaintiff having by his notice 
 dated the day of 18 , accepted that sum in satisfaction of 
 
 his entire cause of action, and the plaintiffs costs herein having been 
 taxed, and the defendant not havinu; paid the same within 48 hours 
 after the said taxation ; 
 
 It is this day adjudged that the plaintiff recover agai' t the defendant 
 costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 a taxing officer's Certificate dated the day of 
 
 , as appears by 
 18 
 
It 
 
 [86] 
 
 M 3 
 
 ' ' i t:|!|! 
 
 i ''i'l ''' ''■ 
 
 i liil i 1 lli 
 
 JUDICATURE AC3T — FORMS. 
 
 No. 167. 
 
 Judgment on Motion after Trial of Issue. — See notes to sec. 47 ; aeo, 48 ; 
 0. XXXVI., r. 4 ; 0. XXXVII., r. 5 ; Form No. 159. 
 
 [Title, &c.] 
 
 The 
 
 day of 
 
 18 
 
 (Date of order of Court.) 
 
 The (Issues or Questions) of fact arising in this action by the 
 
 order dated the day of ordered to be tried before havinj? 
 
 on the day of been tried before , and the havin(^ 
 found , Now on motion before the Court for judgment on behalf of 
 the , the Court having 
 
 It is this day adjudged that the recover against the the 
 sum of $ and costs to be taxed. 
 
 The above costs have been taxed and allowed at $ 
 by a taxing officer's Certificate dated the day of 
 
 as appears 
 18 
 
 No. 168. 
 
 Form of Judgment on Prcecipe for Sale or Foreclosure with reference as 
 
 TO INCUMBRANCES, tt'o. , aiid orders for Immediate Payment and 
 
 Delivery of Possession. — O. IX., r. 10 ; G. O. 
 
 Chy. 426 et seq. 
 
 [Title, &C.1 
 
 t 
 
 1. Upon the application of the plaintii! under Rule No. 78, of the 
 rules of the Supreme Court, and upon reading the writ of summons issued 
 in this action, and indorsed under Rule No. 17, and an affidavit of, &c., 
 filed, &c. , and an affidavit of, &c., filed, &c. , of service of the said writ on 
 the defendant, and no appearance having been entered in the said action 
 as by the (books in the office of the at ) appears ; 
 
 2. It is ordered that all necessary inquiries be made, accounts taken, 
 costs taxed, and proceedings had for redemption or sale {or redemption or 
 foreclosure), and that for these purposes the cause be referred to the Master 
 of this Court at 
 
 3. {Where judgment is for immediate payment add, It is further 
 ordered that the defendant do forthwith after the making of 
 the Master's report pay to the plaintiff what shall be found due to him 
 for principal money, interest and costs at the date of the said report, 
 and upon payment of the amount due to him {rvhere judgment is for 
 sale add, before the sale hereinbefore directed uhall have taken place) that 
 the plaintiff do assign and convey the mortgaged premises, and deliver up 
 all documents relating thereto. ) 
 
 4. ( Where judgment is for immediate possession add, It is further ordered 
 that the defendant do forthwith deliver to the plaintiff, or to whom he 
 may appoint, possession of the lands and premises in question, in this 
 cause, or of such part thereof as may be in the possession of the said 
 defendant.) 
 
i<, I I A 
 
 47 ; Bee. 48 ; 
 169. 
 
 f Court.) 
 
 tion by the 
 
 havinfj 
 
 having 
 
 on behalf of 
 
 LB 
 
 the 
 
 , as appears 
 18 
 
 KEFEKENCE AS 
 
 ment and 
 
 fo. 78, of the 
 nnmons issued 
 fidavit of, &c. , 
 16 said writ on 
 ;he said action 
 
 ccounts taken, 
 redemption or 
 1 to the Master 
 
 It is further 
 ;he making of 
 nd due to him 
 le said report, 
 udgment is for 
 ken place) that 
 and deliver up 
 
 urther ordered 
 or to whom he 
 estion, in this 
 on of the said 
 
 JUDGMENTS. 
 
 No. 169. 
 
 Form of Judgment for Foreclosure or Sale, account taken by REaiSTRAR, 
 
 and Orders for Immediate Payment and Delivery of Possession. — 
 
 O. IX., r. 10 ; G. O. Chy. No. 426 et seq. 
 
 [Title, &c.] 
 
 1. Upon the application of the plaintiff under Rule No 78, of the 
 rules of the Supreme Court, and upon reading the writ of summons issued 
 in this action, and indorsed under Rule No. 17, and an affidavit of, &c. , 
 filed, &c., and an affidavit of, &c., filed, «fec., of service of the said writ on 
 the defendant, and no appearance having been entered in the said action 
 as by the (books in the office of the at ) appears ; 
 
 2. This Court finds that the subsequent interest at the rate of 
 
 per centum per annum on tlie sum of principal money secured 
 
 by the indenture of mortgage in the pleadings mentioned, up to the 
 day of next, being the time appointed for payment as hereinafter 
 
 mentioned, amounts to and that the costs of the plaintiff 
 
 amount to which said subsequent interest and costs being 
 
 added to the sum of claimed by the indorsement on the writ served 
 
 on the defendant make together the sum of 
 
 3. And upon the said defendant paying the said sum of into the 
 
 bank at the between the hours of ten o'clock in the 
 
 forenoon and one o'clock in the afternoon i>i the day of next, to 
 
 the joint credit of the plaintiff and the Registrar [wliere oi'der for 
 payment granted insert, or in case the jjlaintitf shall (where judgment is 
 for sale add, before the sale hereinafter directed shall have taken place) 
 recover the amount due to him under the order for payment hereinafter 
 contained], it is ordered that the said plaintiff do assign and convey the 
 mortgaged premises, and deliver up all documents relating thereto ; ' 
 
 4. But in default of the said defendant making such payment by the 
 time aforesaid, it is ordered (tvhere judgment is for foreclosure, after " it is 
 ordered," say " that the said defendant do stand absolutely debarred and 
 foreclosed, of and from all equity of redemption in and to the said prem- 
 ises ;" ivhere judgment is fur sale, then after the ivoi'ds "it is ordered," say 
 "that the*said premises be sold, with the approbation of the Master of 
 this Court at ). 
 
 5. (If judgment is for foreclosure omit this section.) And it is ordered 
 that the purchasers do pay their purchase money into Court, to the credit 
 of tliis cause, and that the same when so paid in be applied in payment of 
 what has been found due to the said plaintiff together with subsequent 
 interest and subsequent costs, to be computed and taxed by the said 
 Master, and that the balance do abide the further order of the Court. 
 
 6. ( Where judgment is for immediate payment add :) It is further ordered 
 that the defendant do forthwith pay to the plaintiff the sum of 
 
 being the amount due to the plaintiff at the date hereof for 
 principal money, interest and costs. 
 
 7. ( Where judgment is for imm>ediate possession add :) And it is further 
 ordered that the defendant do forthwith deliver to the plaintiff , or to 
 whom he may appoint, possession of the mortgaged premises, or of such 
 part thereof as may be in the possession of the said defendant . 
 
 [87] 
 
 • i 
 
T"^ T- 
 
 [88] 
 
 JUDICATURE A,CT — FORMS. 
 
 f : ■ 
 
 «■ 
 
 m 
 
 mm 
 
 No. 170. 
 
 Form of Jvdgment for Eedemption,issned by a local Master. — O, IX., r. 10 ; 
 
 G. O. Chy. No. 426 et seq. 
 
 [Title, &c.] 
 
 1. Upon the application of the plaintiff, under Rule No. 78, of the 
 rules of the Supreme Court, and upon reading the writ of summons issued 
 in this action, and indorsed under Rule No. 16, and an affidavit of, &c., 
 tiled, &c. , and an affidavit of, &c. , filed, «&c. , of service erf the said writ on 
 the defendant, and no appearance having been entered in the said action, 
 as by the (books in the office of the at ) appears ; 
 
 2. It is ordered that all necessary inquiries be made, accounts taken, 
 costs taxed, and proceedings had for the redemption of the premises in 
 question, and that for this purpose the cause be referred to the Master 
 at 
 
 3. And it is ordered that upon the plaintiff paying to the defendant 
 what shall be found due to him, or in case nothing shall be found due to 
 the defendant then forthwith after the confirmation of the said Master's 
 report, that the defendant do reconvey the said mortgaged premises, and 
 deliver up all documents relating thereto. 
 
 4. It is further ordered that in case the plaintiff shall make default in 
 payment as aforesaid of what may be found due to the defendant that 
 the plaintiff's action do stand dismissed out of this Court, with costs to be 
 paid by the plaintiff to the defendant forthwith after taxation thereof. 
 
 5. It is further ordered that in case nothing shall be found due from 
 the plaintiff to the defendant that the defendant do pay the plaintiff 
 his costs of this suit forthwith after taxation thereof, and in case any 
 balance shall be found due from the defendant to the plaintiff that the 
 defendant do pay such balance to the plaintift forthwith after the con- 
 firmation of the Master's report. 
 
 ';-i 
 
 No. 171. • 
 
 Form of Judgment for Administration by a Local Master. — O. IX. , r. 10 ; 
 
 G. O. Chy. No. 467 et seq. 
 
 1. Upon tho application of the above-named plaintiff in the presence 
 of the solicitor for the defendant [or no one appearing for the defendant 
 although duly notified as by affidavit filed appears], and upon hearing read 
 the affidavits and papers filed, and what was alleged by the solicitor for 
 [the applicant or all parties]. 
 
 2. It is ordered that all necessary inquiries be made, accounts 
 taken, costs taxed and proceedings had for the administration and final 
 winding up of the personal [and real] estate of and for the adjust- 
 ment of the rights of all parties interested therein, by the Master of this 
 Court at 
 
 3. And it is ordered that all balances which may be found due from 
 the plaintiff or defendant [or any or either of them] to the said 
 estate be, forthwith after the same shall have been ascertained as afore- 
 said, paid into Court to the credit of this cause, subject to the further 
 order of the Court. 
 
JUDGMENTS. 
 
 [89] 
 
 O. IX., r. 10; 
 
 o. 78, of the 
 mmons issued 
 idavit of, &c., 
 e said writ on 
 le said action, 
 
 ) appears ; 
 counts taken, 
 e premises in 
 to the Master 
 
 e defendant 
 found due to 
 I said Master's 
 premises, and 
 
 ake default in 
 fendant that 
 ith costs to he 
 ation thereof, 
 and due from 
 the plaintiff 
 i in case any 
 itiff that the 
 after the con- 
 
 0. IX., r. 10; 
 
 the presence 
 ;he defendant 
 
 hearing read 
 5 solicitor for 
 
 de, accounts 
 iion and final 
 )r the adjust- 
 [aster of this 
 
 nd due from 
 
 to the said 
 
 ned as afore- 
 
 • the further 
 
 4. And it is ordered that such personal [and real] estate, or such 
 parts thereof as the said Master may hereafter direct, bo sold, as the said 
 Master may direct, and that the purchasers do pay their purchase 
 money into Court to the credit of this cause, subject to the order of the 
 Court. 
 
 5. It is further ordered that the Master do execute conveyances for any 
 infant parties who by reason of their tender years are unable to execute 
 the same. 
 
 No. 173. 
 
 Form of Judgment for Partition or Sale by a County Court Judge or a Local 
 Master.— O. IX., r. 10 ; G. 6. Chy. No. 638 et seq. 
 
 1. Upon the application of the above-named plaintiff in the presence 
 of the solicitor for the defendant [or no one appearing for the defendant 
 although duly notified as by affidavit filed appears] and upon hearing read 
 the affidavits and papers filed, and what was alleged by the solicitor for 
 [the applicant or all parties.] 
 
 2. It is ordered that all necessary inquiries be made, accounts taken, 
 costs taxed and proceedings had for the partition or sale of the lands and 
 premises in the said affidavits mentioned, and for the adjustment of the 
 rights of all parties interested therein, or for a partition of part and sale 
 of the remainder of the said lands as may be most for the interest of the 
 parties entitled to share therein [hy the Master of this Court at 
 
 3. And it is further ordered that the said lands, or such part thereof 
 as the said Master shall think fit, be sold, with the approbation of the 
 said Master, freed from the claims of such of the incumbrancers thereon 
 (if any) whose claims were created by parties entitled to the said lands 
 before the death of the said testator [or, intestate] as shall have consented 
 to such sale, and subject to the claims of such of them as shall not have 
 consented [and freed also from the dower of as the case may be], 
 and that the said Master do execute the conveyances on 
 behalf of such of the infant parties as, by reason of their tender years, 
 are unable to execute the same, and that the purchasers do pay their 
 purchase money into Court to the credit of this cause, subject to the 
 order of the Court. 
 
 4. And it is further ordered that, in the event of a partition of the 
 whole of the said land, or in the event of a partition of a part and the 
 proceeds of the sale of the remainder being insufficient to pay the costs 
 in full, the costs, or so much thereof as remains unpaid, be borne and 
 
 {)aid by the said parties according to their shares and interests in the s^ud 
 auds [if there be any infant parties interested in the estate add] and that the 
 proportion of the said costs payable by the infant parties respectively be, 
 and the same is hereby declared to be, a lien on their respective shares, 
 and that the plaintiff do pay the guardian of the infant defendants his 
 costs of this suit and that the same be added to his own costs. 
 
^n! 
 
 .»> ». 
 
 [90] 
 
 JUDICATURE ACT— FORMS. 
 
 No. 178. 
 
 Certificate of Taxation. — O. L. 
 [Title, &0.J 
 I certify that the oosta of the have been taxed and allowed 
 
 at 
 
 Dated &c. 
 
 No. 174. 
 
 Form of Certificate of Officer after Trial by a Jury. — O. XXX., r. 22. 
 
 [Title, &C.1 
 
 £ certify that this action was tried before the Honourable Mr. Justice 
 and a special jury of the county of on the 
 
 and days of (October,) 188 
 
 The Jury found [state findings] . 
 
 {If the Judge gives instructions as to the judgment thereon, add), And the 
 said Judge directed, &c., [as the case may he.] 
 
 Dated, (kc. 
 
 APPENDIX (J). 
 
 No. 175. WRITS OF EXECUTION. 
 
 [Writ of Fieri Facias.— 0. XXXVIII., r. 14 ; 0. XXXIX., r. 1. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D. and others, Defendants. 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith. 
 
 To the sheriff of greeting. 
 
 We command you that of the goods and chattels (or lands and tenements^ 
 
WRITS OF EXECUTION. 
 
 [91] 
 
 nd allowed 
 
 ^., r. 22. 
 
 Ir. Justice 
 he 
 
 , And the 
 
 of C. D. in your bailiwick you cause to be made the sum of 9 
 and also interest thereon from the day of 
 
 « [Day of the judgment or order, or day on which money 
 
 directed to he paid, or day from lohich interest in directed by the order to run, 
 aa the case may be,] which said sum of money and interest were lately be- 
 fore the Justices of our High Court of Justice in a certain action [or certain 
 actions, as the case may be] wherein A. B. is plaintiff, and C. D. and others 
 are defendants [or in a certain matter there depending intituled " In the 
 matter of E. F.," as the case maij be] by a judgment [or order as the case 
 may be] of our said Court, bearing date the day of 
 
 adjudged [or ordered, as the case nuxy be] to be paid by the said G. D. to 
 A.B., together with certain costs in the said judgment [or order os */ie 
 case may be] mentioned, and which costs have been taxed and allowed 
 (by one of the taxing masters of our said Court) at the sum of 
 $ as appears by the certificate of the said taxing master, dated 
 
 the day . And that of the goods and 
 
 chattels {or lands or tenements) of the said C. D. in your bailiwick you 
 further cause to bo made the said sum of $ [costs] , together with 
 
 interest thereon from the day of , (the dale of 
 
 the certificate of taxation. The writ must be ao moulded aa to follow 
 the aubatanoe of the judgment or order) and that you have that money 
 and interest before our Justices aforesaid at Toronto immediately after 
 the execution hereof, {or, in the caae of landa and tcnementa, immediately 
 after the expiration of twelve months from the day of your receipt hereof) 
 to be paid to the said A. B. in pursuance of the said judgment [or order 
 aa the caae may be] . And in what manner you shall have executed this 
 our writ make appear to our Justices aforesaid at Toronto immediately 
 after the execution thereof. And have there then this writ. 
 
 Witness, the Honourable 
 The day of 18 
 
 President, &c. 
 
 r. 1. 
 
 Britain 
 
 ements^ 
 
 No. 176. 
 
 Fieri Facias on Order for Costs. — O. 
 
 r. 1. 
 
 XXXVIII., r. 14; O. XXXIX., 
 
 Victoria, &c. 
 
 To the sheriff of 
 
 [Title, &c.] 
 
 greeting. 
 
 We command you that of the goods and chattels of in your 
 
 bailiwick vou cause to be made tne snm of for certain costs which 
 
 by an order of our High Court of Justice date^ the day of 
 
 18 , were ordered to be paid by the said to 
 
 and which have been taxed and allowed at the said sum, and interest on 
 the said sum at the rate of 6 per centum per annum from the day 
 
 of 18 , and that you have the said sum and interest before the 
 
 Justicesof our High Court at Toronto, immediately after the execution here- 
 of, to be rendered to the said . And in what manner you shall have 
 executed this our writ make appear to us immediately after the execution 
 hereof. And have there then this writ. 
 
 Witness, &o. 
 The 
 
 day of 
 
 18 
 
[92] 
 
 JUDICATURE ACT — FORMS. 
 
 1 
 
 %n 
 
 
 
 I 
 
 #i»«» 
 
 , 
 
 
 1 
 
 iO|^«l 
 
 
 
 1 
 
 t 
 
 Si! 
 
 t 
 
 '1 1 
 
 ■ ■• 
 
 «ia» 
 
 
 
 <[ 
 
 ,««• 
 
 
 
 ■«•» 
 
 
 
 t 
 
 rr 
 
 
 •t 
 
 a 
 
 
 
 ..Si 
 
 '3» 
 
 
 
 ■"H 
 
 
 
 ' •** 
 
 
 f 
 
 • 
 
 
 
 .1 } 
 
 Indorsements. 
 
 Levy $ and $ for costs of execution, &c., and also interest 
 
 on f at 6 per contum per annum from the day of* 
 
 18 , until payment ; besides sheriff's poundage, officers' fees, costs of 
 levying, and all other legal incidental expenses. 
 
 This writ was issued by 
 of ^ 
 
 agent for 
 of 
 solicitor for the 
 
 The is a and resid'^'i 
 
 at 
 in your bailiwick. 
 
 No. Ill, 
 
 Writ of Venditioni Exponas. — 0. XXXIX., r. 2. 
 
 [Title, &c.] 
 Victoria, &c. 
 
 To the sheriff of greeting. 
 
 Whereas by our writ we lately commanded you that of the goods and 
 chattels {making the necessary variations of this form throughout in 
 the case of lands and tenerr>,ents) of C. D. [Iiere recite the fieri facias to 
 the end] . And on the day of you returned to our Justices 
 
 in the Division of our High Court of Justice aforesaid, that by 
 
 virtue of the said writ to you directed you had taken goods and chattels 
 of the said G. D. to the value of the money and interest aforesaid, which 
 said goods and chattels remained in your hands unsold for want of buyers. 
 Therefore, we being desirous that the said A. B. should be satisfied his 
 money and interest aforesaid, command you tha* you expose to sale and 
 sell, or cause t j be sold, the goods and chattels vi the said C. D. , by you 
 in form aforeaaid taken, and every part thereof, for the best price that 
 can be gotten for the same, and have the money arising from such sale 
 before our Justices aforesaid, at immediately after the execution 
 
 hereof, to he paid to the said A.\B. And have there then this writ. 
 
 Witness, &:c., , the day of 18 
 
 No. 178. 
 
 Writ of Possession.— O. XXXVIII., r. 3. 
 
 Victoria, &c.. 
 
 ^ [Title, &c. 
 to the sheriff of 
 
 , greeting. 
 
 Whereas lately in otir High Court of Justice, by a judgment of the 
 
 Division of the same Court [A. B. recovered] or \_E, F. was 
 
 ordered to deliver to A. B?, possession of all that 
 
 with the 
 
 ai purtenances in your bailiwick : Therefore, we command you tliat you 
 '^ liter the same, and without delay cause the said A. B. to have posses- 
 sion of the said laud and premises witli the appurtenances, and that you 
 defend and keep him and his assignj; in peaceable and quiet possession 
 when and as often us any iuterrupticm. may or shall, from time to time, 
 be given or offered to them or any of theiii. Witness, etc. 
 
WRITS OF EXECUTION. 
 
 [93] 
 
 No. 179. 
 
 ilso interest 
 of» 
 >es, costs of 
 
 ) goods and 
 oughout in 
 ri facias to 
 )ur Justices 
 (id, that by 
 ad chattels 
 said, which 
 t of buyers, 
 satisfied his 
 to sale and 
 D. , by you 
 t price that 
 u such sale 
 B execution 
 1 writ. 
 
 18 
 
 , greeting. 
 
 ■the 
 
 E. F. was 
 with the 
 11 that you 
 ive posses- 
 d that you 
 possession 
 Q to time, 
 
 Writ of Delivery.— O. XXXVIII.. r. 4. 
 [Title, &c.] 
 
 Victorip, &o., to tlie sheriff of 
 
 greeting: \/e command you, that without delay you cause the following 
 chattels, that is to say [here enumerate the chattels recovered by the 
 judgment for the return of which execution has been ordered to issue] , 
 to be returned to A. B„ which the said A. B. late^ • in our 
 recovered against G. D. [or C. D. was ordered lo deliver to the said 
 A. Bi] in an action in the Division of our said Court.''^ And 
 
 we further command you, that if the said chattels cannot be found in 
 your bailiwick, you distrain the said C. D. by nil his lands and chattels 
 in your bailiwick, so that neither the said G. D. nor any on a for him do 
 . lay hands on the same untU the said C. D. render to the said A. B. the 
 said chattels ; and in what manner you shall have executed this our 
 writ make appear to the Justices of the Division of our High 
 
 Court of Justice at Toronto, immediately after the execution hereof, and 
 have you there then this wi Witness, etc. 
 
 No. 180. 
 
 T/i« Like, but instead of a Distress until the C^ nttel js returved, command- 
 
 ing the Slieriffto levy on the Defemlad'^ u-)ods the assessed Valine 
 
 o/i«.— O. XXXYIIL, r. 4. 
 
 [Proceed as in the preceding form until the''', and then thus ;] 
 
 And we further command you that if the said chattels cannot be found in 
 your bailiwick, of the goods and chattels of the said C. D. in your baili- 
 wick you cause to be made $ [the assessed ^alue of the chat- 
 tels,] and in what manner you shall have executed i;uis our writ make 
 appear to the Judges of the Division ot our High Court of 
 Justicfc at Toronto, imm ,aiately after the execution hereof, and have you 
 there then this writ. Witness, etc. 
 
 No. 18 J. 
 
 Writ of Attachment.— 0. XXXVIII., r. 4. 
 
 [Title, (fee] 
 Victoria, &c., 
 
 To the sheriff of , greeting : 
 
 We command you to attach C. D. so as to have him before us in the 
 Division of our High Court of Justice there to answer to 
 us, as well touching a contempt which he it is alleged hath committed 
 against us, as also such other matters as shall be then and there laid to 
 his charge, and further to perform and abide such order as our said 
 Court shall make in this behalf, and hereof fail not, and bring this writ 
 with you. Witness, etc. 
 
 \mm[ 
 
[94] 
 
 
 Maw 
 
 1, 
 
 , i ' 
 
 i^Ml 
 
 i ^ Hi 
 
 SIS 
 
 »"l««l 
 
 
 ■ ii ' 
 
 a*" 
 
 
 Mi'l ■ 
 
 f'l 
 
 
 
 d 
 
 
 
 
 
 
 
 No. 183. 
 
 JUDICATUEE ACT — FORMS. 
 
 Writ of Sequestration.— 0. XXXVIII., r. 4. 
 
 Victoria, etc., 
 
 To the sheriff of 
 
 [Title, &o.] 
 
 , greeting : 
 
 Whereas lately in the Division of our High Court of Justice 
 
 in a certain action there depending, wherein A. B.ia plaintiff and C. D. 
 and others are defendants [or, in a certain matter there depending intituled 
 " In the matter of E. F., as the case may be] by a judgment [or order as 
 the case may be] of our said Court made in the said action [or matter], and 
 
 bearing date the 
 
 day of 
 
 18 , it was ordered 
 
 No. 183. 
 
 Delivery or Assessed Value of 0:attels. 
 
 [Title, &c. 
 
 that the said C. D. should [pay into Court to the credit of the said action the 
 sum of $ ; or, as the case may be]. Know ye, therefore, that we have 
 
 given, andjby these presents do give, to you full power and authority to enter 
 upon all the lands, tenements and real estate whatsoever of the said C" 
 D. , and to collect, receive and sequester into your hands, riot only all the 
 rents and profits of his said lands, tenements and real estate, but also all 
 his goods, chattels and personal estates whatsoever ; and therefore wo com- 
 mand you, that you do it certain proper and convenient dpys and hours, 
 go to and enter upon ali the lands, tenements and leal estates of the said 
 U. D., and that you do 'cllect, take and get into your hands not only the 
 rents and profits of his taid real estate, but also all his goods, chattels, and 
 personal estate, and detain and keep the same under sequestration in your 
 hands until the said C. D. shall [pay into Court, to the credit of the said 
 action, the sum of $ or, as the case may be,] clear his contempt, 
 
 and our said Court make other order to the contrary. Witness, &c. 
 
 O. XXXVIII.,r. 4. 
 
 Victoria, etc., to the sheriff ot greeting. 
 
 We com:iiand you that without delay you cause to be returned to 
 the following chattels, namely ( Enumerate chattels recovered by judgment 
 for the return of which execution has been order to issue,) wl'icii the 
 said lately (recovered against or was ordered to deliver to the 
 
 said,) in an action in our High Court of Justice. 
 
 And we farther command you that if the said cha**;el8 cannot be found 
 in your bailiwick then of the goods and chattels of the said in 
 
 your bailiwick you cause to be made, tJie assessed value of the chattels) 
 And in what manner you shall have executed tliis our writ make appear 
 to us in our said Court immediately after the execution hereof. And huve 
 there tlien this writ. 
 
 Witness, &o. 
 
 Indorsement". 
 
 If the chattels cannot be found in your bailiwick, levy $ the 
 
 assessed value thereof, and interest thereon at (> per centum per annum 
 from the day of 18 until payment, besides sheriff's 
 
WARRANT FOR ARREST. 
 
 [96] 
 
 irt of Justice 
 S and C. D. 
 ling intituled 
 [or order as 
 matter], and 
 i was ordered 
 ,id action the 
 tliat we have 
 Drity to enter 
 f the said 0." 
 i only all the 
 , but also all 
 ifore wo com- 
 s and hours, 
 3 of the said 
 not only the 
 chattels, and 
 ation in your 
 t of the said 
 lis contempt, 
 
 CSS, 
 
 &c. 
 
 r. 4. 
 
 greeting. 
 
 rned to 
 hy judgment 
 ) wJiich the 
 iliver to the 
 
 poundage, officers* fees, costs of levying, and all other legal incidental 
 expenses. 
 
 This writ was issued by 
 of 
 
 agent for 
 of 
 solicitor to^the ' who reside at 
 
 The defendant is a 
 and resides at 
 in your bailiwick. 
 
 No. 184. 
 
 Warrant ^'>r arrest of a defaulthig vntness. — Sec. 86. 
 
 Province of Ontario. ) 
 County of ) 
 
 Between A. B., Plaintift, 
 
 and 
 
 G. D., Defendant. 
 
 To E. F. 
 
 Whereas proof has been made before me that H. N. was duly subpoenaed 
 to give evidence on behalf of the plaintiff (ur as the case may be), in the 
 above cause at the sittings of the Couri/ of Assize {or as the case may be), 
 at Toronto (or as the case may be, whit^h commenced on the day of 
 
 18 ) ; that the pre sence of the said H. K. , is material 
 to the ends of Justice ; and that the .aid H. N. has failed to attend in 
 accordance with the requirements of t'le subpcsna. 
 
 These are therefore to command you to take the said H. N., and to bring 
 and have him before me at the said sittings, or before such other Judge as 
 may be presiding thereat, th?re to testify what he may know concerning 
 the matters in question in the said cause, and that you detain him in your 
 custody until he shall have given his evidence, or until the aaid siti'ngs 
 shall have ended, or until other order be made by the Court concerning 
 him. 
 
 Given under my hand, this 
 
 A.D. 18 
 
 at 
 
 day of 
 
 J. J. M. 
 
 lot be found 
 d in 
 
 the chattels) 
 aake appear 
 . And hLve 
 
 per annum 
 dbh sheriff's 
 
iteii 
 
 H 
 
 p: 
 
 m^m I 
 
 ■'if 
 
 •! i! I 
 
 fsi»i 
 
PART III. 
 
<: 
 
 i^' 
 
 %8 
 
 as 
 
 t*5 
 
 i<l< ml 
 
 fVI 
 
 ll! 
 
 k I 
 
 
 . i 
 
 w 
 
An Act respecting the Court of Chancery. 
 
 (R. S. O. Chap. XL.) 
 
 HER Majesty, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1. This Act may be cited as " The Chancery Act" 
 
 [Sec. 2 continues the existing Court. Sec. 3 refers to the seal to be used. Sees. 
 4 to 7 relate to the Judges, the persons eligible for that position, their rank and 
 precedence and oath of office. Sees. 8 to 16 provide for the appointment of officers, 
 and clerks, their duties, oaths of office, salaries and foes. Sees. 17 and 18 
 declare that sheriffs and gaolers shall be officers, and gaols prisons, of the Court. 
 Sees. 19 to 22 relate to sittings of the Court, power of the Judges to act separately, 
 and obtain assistance from .Judges of other Courts. Sees. 23 to 27 provide for 
 holding circuits. Sees. 28 and 29 refer to the chambers businesb, and the powers 
 and duties of the referee in chambers (see Jud. Act, O. XLTX., r. G). Sees. 30 
 ti> 33 relate to the accountant, moneys, and securities in Court.] 
 
 JURISDICTION OF THE COURT. 
 
 GENERAL JURISDICTION. 
 
 34. The Court shall have the like jurisdiction and power as 
 by the laws of England were on the fourth day of March, 1837, 
 possessed by the Court of Chancery in England in respect of 
 the matters hereinafter enumerated, that is to say : 
 
 1. In all cases of fraud and accident ; 
 
 2. In all matters relating to trusts, executors and adminis- 
 trators, copartnership and account, mortgages, awards, dower, 
 infants, idiots, lunatics and their estates \ 
 
 3. To stay waste ; 
 
 4. To compel the specitic performance of agreements ; 
 
ill 
 
 Swi: 
 
 .« 
 
 6 
 
 
 HIT - 
 
 511 ^^ 
 
 [100] COURT OF CHANCERY. 
 
 5. To compel the discovery of concealed papers or evidence, 
 or such as may be wrongfully withheld from the party claiming 
 the benefit of the same ; 
 
 6. To prevent multiplicity of suits ; 
 
 7. To stay proceedings in a Court of Law prosecuted against 
 equity and good conscience ; 
 
 8. To decree the issue of Lettars Patent from the Crown to 
 rightful claimants ; 
 
 9. To repeal and avoid Letters Patent issued erroneously or 
 by mistake or improvidently or through fraud ; 
 
 35. The rules of decision in the said matters shall, except 
 when otherwise provided, be the same as governed the Court 
 of Chancery in England in like cases on the fourth day of 
 March, one thousand eight hundred and thirty-seven, and the 
 Court shall possess power to enforce obedience to its orders, 
 judgments and decrees, to the same extent as was then pos- 
 sessed by the Court of Chancery in England. C. S. U. C. c. 12, 
 s. 25. 
 
 36. The said Court shall have the like jurisdiction and 
 power a3 the Court of Chancery in England possessed on the 
 tenth day of June, one thousand eight hundred and fifty -seven, 
 as a Co art of Equity to administer justice in all cases in which 
 there existed no adequate remedy at Law. C. S. U. C. 12, 
 8. 26. 
 
 37. The Court shall have the same equitable jurisdiction in 
 matters of revenue as the Court of Exchequer in England 
 possessed on the eighteenth day of March, one thousand eight 
 hundred and sixty five. 28 V. c. 17, s. 2. 
 
 Before the passing of this Act it was held that the Court did not possess such 
 jurisdiction, Miller v, Attorney-General, 9 Gr. 558. 
 
 As to the equitable jurisdiction possessed by the Court of Exchequer in England, 
 in revenue matters, see 33 Hen. 8, c. 39, s. 79 ; Attorney-General v. Hailing, 15 M. 
 & W. 687 ; ex parte Colebrooke. 7 Price, 87 ; Colebrooke v. Attorney-Ganeral, 7 
 Price, 146; Manning's Exch. Pr. 101. 
 
 38. If the defendant in any suit at law sets up any equit- 
 able defence, and judgment is given against him upon the 
 equitable defence, the judgment shall be pleadable as a good 
 bar and estoppel ngainst any bill filed by the defendant in 
 
INJUNCTIONS. 
 
 [101] 
 
 Equity against the plaintiff or representative of such plaintiff 
 at Law, in respect to the same subject matter which hay been 
 brought into judgment by such equitable defence at Law ; 
 but this section shall not be construed as declaring that such 
 judgment at Law on an equitable defence has not been hereto- 
 fore a good bar to a suit in Equity on the same subject matter. 
 29-30 V. c. 42, s. 3. 
 
 INJUNCTIONS. 
 
 not possess such 
 
 39. The Court may grant an injunction to stay waste in a 
 proper case, notwithstanding that the party in possession claims 
 by an adverse legal title. C. S. U. C. c. 12, s. 27. 
 
 40. In all cases in which the Court has jurisdiction to enter- 
 tain an application for an injunction against a breach of any 
 covenant, contract or agreement or ag'ainst the commission or 
 continuance of any wrongful act, or for the specific performance 
 of any covenant, contract or agreement, the Court, if it thinks 
 fit, may award damages to the party injured either in addition 
 to or in substitution for such injunction or specific performance, 
 and such damages may be ascertained in such manner as the 
 Court may direct, or the Court may grant such other relief as 
 it may deem just.28 V. c. 17, s. 3. 
 
 The question of damages will not be entertained, except in cases where the 
 Court has jurisdiction irrespective of any right to them, Durell v. Pritchard, L. 
 E. 1 Ch. App. 244 ; Hindley v. Emery, L. R. 1 Eq. 52 ; Lewers v. Earl of Shaftes- 
 bury, L. li. 2 Eq. 270 ; Wedmore ?'. Corporation of Bristol, 11 W. R. 136 ; Swaine 
 V. Great Northern Railway Comp.any, 1 2 W. R. ;i91. If the jurisdiction existed at 
 the time of filing the bill, the Court will entertain the question of damages, though 
 something occurs during the litigation which prevents the jurisdicijion attaching 
 at the hearing, Davenport v. Rylands, L. R. 1 Eq. 302 ; Eastwood v. Lever, 33 
 L. J. Ch. 355 ; Cory v. Thames Iron Company, 11 W. R. 589. 
 
 An inquiry as to damages sustained by infringement of a patent will not be 
 given where an issue as to damages was not submitted to the jury, which in the 
 same suit tried the validity of the patent, Needham v. Oxley, 2 N. 11. 388. 
 
 The Court may, and in some cases does, grant damages in substitution for 
 other relief, as the more appropriate remedy, Senior v. Pawson, L. R. 3 Eq. 330 ; 
 Martin v. Headon, L. R. 2 E(i. 425 ; Uurell v. Pritchard, L. R. 1 Ch. App. 244 ; 
 Howe V, Hunt, 31 Beav. 420 ; Eranklinski v. Ball, 33 Peav. 560 ; Catton v. Wyld, 
 32 Beav. 266 ; Tillett v. Charing-cross Bridge Coiupany, 26 Beav. 419. 
 
 If the plaintiff does any act which disentitles him to specific performance of the 
 agreement, he will not be entitled to damages, Collier v. Stuteley, 7 W. R. 710 ; 
 Bauman v. Matthev, s, 4 L. T. N. S. 784 : so if the injury complained of is trivial, 
 Clarke f. Clark, L. il. 1 Ch. App. 16; Curriers' Comr)any v. Corbett,_13 W. R. 
 1056 ; but in such a case the dismissal of the bill will be without prejudice to the 
 plaintiff's right to bring an action at law, Robson v, Whittingham, L. K. 1 Ch. 
 App. 442. 
 
 Where the agreement is uncertain, damages will not be given, Lancaster v. De 
 Tratford, 10 W. R. 474 ; Darbey v. Whittaker, 4 Drew. 134. 
 
 DamageH may be granted though not prayed liy the bill, Curriers' Company 
 V. Corbett, 2 Dr. & S. 355 ; Catton v. Wyld, 32 Beav. 266. 
 
Tf'' 
 
 i! 
 
 ' 
 
 [102] 
 
 COURT OP CHANCERY. 
 
 For form of decree directing special enquiry aH to damages, see Middleton v. 
 Greenwood, 3 N. 11. 150. 
 
 On an application for an injunction the Court always now requires the plaintiff 
 to give an undertaking as to damages. The undertaking should he inserted in the 
 order for the injunction in these words : " And the plaintiff, by his counsel, under- 
 taking to abi<le by any order the Court may make as to damages, in case this 
 Court should hereafter be of opinion that tlie defendant shall have sustained any, 
 by reason of this order which the plaintiff ought to pay." An order directing an 
 inquiry as to damages may he obtained after a decree dismissing the bill," Newby 
 V. Harrison, 7 Jur. N. S. 981 ; Coy v, Henderson, Chambers. 
 
 WILLS AND MA.TTERS TESTAMENTARY. 
 
 *>. 
 
 l\ 
 
 »*• • 
 
 41. The Court shall have jurisdiction to try the validity of 
 last wills and testaments, whether the same respect real or 
 personal estate, and to pronounce such wills and testaments to 
 be void for fraud and undue influence or otherwise, in the 
 same manner and to the same extent as the court has jurisdic- 
 tion to try the validity of deeds and other instruments. C. S. 
 U. C. c. 12. s. 28. 
 
 The Court has jurisdiction to set aside a will on a proper case, without waiting 
 for a revocation of the probate, Perrin v, Perrin, 19 Gr. 260 ; Wilson v, Wilson, 
 24 Gr. 392. 
 
 43. The Court shall have jurisdiction in matters testament- 
 ary, as provided in the twenty-eighth to thirtieth sections, 
 inclusive, of " The Surrogate Courts Act." 
 
 The sections of the Surrogate Courts Act (R. S. O., c. 46), referred to in the 
 foregoing section, are as follows : — 
 
 28. In every case in which there is contention as to the grant of probate or 
 administration, and the parties in such case thereto agree, such contention shall be 
 referred to and determined by either of Her Majesty's Superior Courts of Law or 
 by the Court of Chancery on a case to be prepared, and the Surrogate Cour^ 
 having jurisdiction in such matter shall not grant i)robate or administration unti| 
 such contention be terminated and disposed of by judgment, decree or otherwise. 
 
 29. Any cause or proceeding in the said Surrogate Courts in which any conten- 
 tion arises as to the grant of probate or administration, or in which any disputed 
 question may be raised (as to law or facts), relating to matters and causes testa- 
 mentary, shall be removable by any party to such cause or proceeding into the 
 Court of Chancery by order of a Judge of the said Court, to be obtained on a 
 suiiimary application supported by affidavit, of which re«jonable notice shall be 
 given to the other parties concerned. 
 
 (2) The Judge making such an order may impose such terms as to payment or 
 security for costs or otherwise as to him may seem fit ; but no cause or proceeding 
 shall be so removed unless it be of such a nature and of such importance as to 
 render it proper that the same should be withdrawn from the jurisdiction of the 
 Surrogate Court and disposed of by the Court of Chancery, nor unless the personal 
 estate of the deceased exceeds two thousand dollars in value. 
 
 30. Upon any cause or proceeding being so removed as aforesaid, the Court of 
 Chancery shall have full power to determine the same, and may cause any question 
 of fact arising therein to oe tried by a jury, and otherwise deal with the same as 
 with any cause or claim originally entered in the said Court of Chancery ; and the 
 final order or decree made by the said Court of Chancery in any cause or proceed- 
 ing removed as aforesaid, shall, for the guidance of the said Surrogate Court, be 
 transmitted by the Surrogate Clerk to the Registrar of the Surrogate Court from 
 which such cause or proceeding was removed. 
 
ALIMONY. 
 
 [103] 
 
 43. The Court shall have jurisdiction to decree alimony to 
 any wife who would bo entitled to alimony by the law of 
 England, or to any wife who would be entitled by the law of 
 England to a divorce and to alimony as incident thereto, or 
 to any wife whose husband lives separate from hor without 
 any sufficient cause and under circumstances which would en- 
 title her, by the law of England, to a decree for restitution of 
 conjugal rights; and alimony when decreed shall continue until 
 the further order of the Court. C. S. U. C. c. 12, s. 29. 
 
 ration until 
 
 Although in England the mere fact of cleaertion by the husband, will not entitle 
 the wife to a decree for alimony ; still, as in this country, the Court cannot decree 
 restitution of conjugal rights, desertion would be sufficient to warrant a decree for 
 alimony, and desertion coupled with other acts of cruelty forms a material ingredi- 
 ent in determing a wife's right to relief, Severn v. Severn, 3 Gr. 431. And see as 
 to cruelty, Jackson z'. Jackson, 8 Gr. 499. 
 
 The right of a wife is to reside with her husband in his home, or in the joint 
 home of both, where, therefore, the husband residing at home compelled his wife 
 to live apart in lodgings, the Court, although no violence or other ill-treatment was 
 shewn, made a decree for alimony ; and that although the husband had been in the 
 habit of visiting and remaining with his wife, Weir v. Weir, iO Gr. 565. 
 
 When it appeared that the plaintiff's absence from her husband's residence was 
 voluntary, and caused chiefly by her own violent temper, and the husband was 
 still willing to receive and support her, the bill was dismissed, McKay v, McKay, 
 6 Gr. 380. And see as to an offer or willingness on the wife's part to return not 
 being alleged, Edwards v. Edwards, 20 Gr. 392. 
 
 The bill should allege that the husband has refused to receive his wife ; it is 
 not sufficient to allege merely that they are living apart, Walsh v. Walsh, 1 Ch. 
 Ch. 11. 234, where it is desired to give evidence of various acts of violence by the 
 husband, it is necessary to set forth such acts specifically in the bill, in order that the 
 husband may have notice of the acts charged against him, and if he can adduce 
 evidence in rebuttal or explanation, Eodman v. Rodman, 20 Gr. 428. 
 
 The Court refused to make a consent decree for alimony, Gracey v. Gracey, 17 
 Gr. 113 ; or to decree by consent payment of a gross sura in lieu of alimony, 
 Hagarty v. Hagarty, 1 1 Gr. 562. But these cases cannot now be relied on as authori- 
 ties, V.-C. Strong having, in Henderson r. Buskin (May, 1873), see 13 L. J. N. S. 
 337, expressed an opinion altogether at variance with these cases. The cases upon 
 which the learned Vice-Chancellor based his judgment in Henderson v. Buskin, were 
 Hunt V. Hunt, 4 D. F. & J. 221 ; Wilson r. Wilson, 1 H. L. C. 538 ; S. C, 5 H. L. 
 C. 40 ; Williams r. Bailev, L. R. 2 Eq. 731 ; Rowby v. Rowby, L. R. 1. Sc. App. 
 63. Although most of these cases are prior in date to Hagarty v. Hagarty and 
 Gracey v. Gracey they do not seem to have been brought to the attention of the 
 Court when these were argued. 
 
 On a bill for alimony and the custody of children under twelve, the Court can 
 grant the latter relief without a petition being filed, Munro v. Munro, 15 Gr. 431. 
 
 A husband, against whom his wife has obtained a decree for alimony on the 
 ground of desertion, is not entitled, as of right, to have the decree vacated or sus- 
 pended, on his afterwards offering to receive and maintain her, Cronk v. Cronk, 
 19 Gr. 283. Where the plaintiff after an order for interim alimony had been made, 
 returned to her husband's house and resided there for some time, but afterwards 
 left on account of his cruelty, a motion to set aside the interim order on the ground 
 of condonation was refused. Maxwell c. Maxwell, 1 Ch. Ch. R. 27. 
 
 After a decree had been nuide, and alimony jiaid for several years under it, the 
 Court entertained a petition by tlio liusband to lio relieved from the decree, and 
 granted the relief sought on the ground nf the wife's subsequent adultery, Severn v. 
 Severn, 14 Gr. 150. 
 
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 [104] 
 
 COURT OF CHANCERY. 
 
 '(! 
 
 In fixing the amount of alimony to be paid, the husband'g income is theproper 
 guide, Severn v. Severn, 7 Gr. 109 ; but see M.cCulloch v. McCulloch, 10 Gr. 320, 
 where the question of how far the rule of allowing one-third of the husband's 
 income is applicable to this country was considered. The Court will in a proper 
 cuse grant interim alimony, pendente lite, Soules v. Soules, 3 Gr. 113 ; but where 
 the parties had been living apart for four years, and the wife did not allege she 
 vas in want, while the husband swore she was better off than he was, an order 
 fused, Bradley v. Bradley, 3 Ch. Gh. B. 329 ; and see Smith v. Smith, 6 
 
 ^ i'UJ 
 
 i> 
 
 51. 
 
 M)plication for interim alimony, proof of the marriage is all that is 
 reqni: ^d, Nolan v. Nolan, 1 Ch. Ch. R. 368 ; Carr v. Carr, 2 Ch. Ch. R. 71 ; 
 W:ip^i' t. '^.Vilson, 6 Prac. B. 129, and the order will be made although the validity 
 of tl'v ^nn>age is disputed, McGrath v. McGrath, 2 Ch. Ch. R. 411 ; if a marriage 
 de /-.c^o is pro zed it is sufficient, Bradley v, Bradley, 3 Ch. Ch. R. 329; but the 
 affidavit hs to the marriage should state such particulars as will enable the Court 
 to judge whether it has been duly solemnized or not, Taylor v. Taylor, 1 Ch. Ch. 
 R. 234. 
 
 The question whether the plaintiff has been guilty of adultery cannot be raised 
 on an application for interim alimony, Campbell v. Campbell, 6 Prac. R. 128. 
 
 Where interim alimony had not been applied for the Court refused to allow 
 alimony from a date before making the decree, Soules v. Soules, 2 Gr. 299. 
 
 Interim alimony runs from the time of the service of the bill if there has been 
 no want of diligence on the plaintiff's part in making the application, Howe v, 
 Howe, 3 Ch. Ch. R. 494. 
 
 An omission to make the indorsement directed by Order 488 to be made upon 
 the office copy of the bill served, does not disentitle the plaintiff to applv on 
 motion for interim alimony, but is a question merely affecting the costs of the 
 motion, Peterson v. Peterson, 6 Prac. R. 150. 
 
 The usual undertaking given by the plaintiff on obtaining the order for interim 
 alimony to proceed to a hearing at the first possible sittings, was extended to the 
 next sittings where the defendant had failed and wilfully refused to pay interim 
 alimony and disbursements which he had been directed to pay, Bowslaugb v. Bows* 
 laugh, 6 Prac. R. 200. 
 
 44. An order or decree for alimony may be registered in 
 any registry office in Ontario, and such registration shall, so 
 long as the order or decree registered remains in force, bind 
 the estate and interest of every description which the defend- 
 ant has in any lands in the county or counties where such 
 registration is made, and operate thereon for the amount or 
 amounts by such order or decree ordered to be paid in the 
 same manner and with the same effect as the registration of a 
 charge of a life annuity, created by the defendant on his lands 
 would; and such registration may be effected through a certifi- 
 cate of such order or decree by the Registrar of the Court or 
 by the Clerk of Record and Writs or other officer authorized by 
 the Court to sign the same. 28 V. c. 17, s. 4 ; 39 V. c. 7, s. 51. 
 
 Although under this section a certificate of the order for alimony may be regis- 
 tered, a certificate of iis pendens on filing the bill, cannot be registered, White v. 
 White, 6 Prac. R. 208. 
 
 45. In suits for alimony, the Court or a Judge thereof may, 
 in a proper case, order a writ of arrest to issue at any time 
 after the bill has been filed, and shall, in the order, fix the 
 
T 
 
 RELIEF BE INSURANCE. 
 
 [106] 
 
 amount of bail to be given by the defendant, in order to pro- 
 cure his discharge. U. S. U. C. c. 24, s. 9. Vide Rev. Stat. 
 c. 64, s. 11. 
 
 As to the amount of bail on issuing a writ of ne exeat provincia, under 20 Vict., 
 c. 68, s. 3, in a suit for alimony, see Ham v. Ham, 4 U. C. L. J. 261. 
 
 The writ of ne exeat, granted after filing a bill in an alimony suit, remains in 
 force after decree ; and it is no objection that the wife resides out of the jurisdiction, 
 as during coverture the domicile of the husband is the domicile of the wife, Mac- 
 donald v. Macdonald, 5 U. C. L. J. 06. On a motion to discharge defendant from 
 arrest under a writ of arrest, the Court will look into the merits of the case so far 
 as to enable it to judge whether the plaintiff can reasonably expect to succeed in her 
 case, and if not, or if defendant displace the prima facie case made by her on 
 obtaining the writ, he will be discharged, Macpherson v. Macpherson, 2 Ch. Ch. 
 B. 222. 
 
 As to retaining funds of defendant and refusing pajrment to him without his 
 first securing payment of future alimony, see Goct v. Gott, 10 Gr. 643. 
 
 46. In case an order is made for vrit of arrest, in a suit 
 for alimony, the amount of the bail required shall not exceed 
 what may be considered sufficient to cover the amount of future 
 alimony for two years, besides arrears and costs, but may be 
 for less at the discretion of the Court. C. S. U. C. c. 24, s. 10. 
 
 47. In no suit for alimony shall any costs be ordered to be 
 paid de die in diem by the defendant, beyond the amount of 
 the cash disbursements properly incurred by the plaintiff's so- 
 licitor, 32 V. c. 18, s. 1. 
 
 48. In no suit for alimony, in which the plaintiff fails to 
 obtain a decree for alimony, shall any costs be decreed to be 
 paid by the defendant beyond the amount of the cash disburse- 
 ments properly incurred by the plaintiff's solicitor. 32 V. 
 c. 18, s. 2. 
 
 A defendant having been directed to pay full costs, the Court on rehearing de- 
 clined to vary the decree although properly the plaintiff was only entitled to cash 
 disbursements, the parties having acted on the decree, Keith v. Keith, 26 Gr. 110. 
 
 RELIEF AGAINST FORFEITURE FOR BREACH OF COVENANT TO 
 
 INSURE. 
 
 49. The Court shall have power to relieve against a forfeiture 
 for breach of a covenant or condition in any lease to insure 
 against loss or damage by fire, where no loss or damage by fire 
 has happened, and the breach has, in the opinion of the Court, 
 been committed through accident or mistake, or otherwise, 
 without fraud or gross negligence, and there is an insurance 
 on foot at the time of the application to the Court in con- 
 formity with the covenant to insure, upon such terms as the 
 Court may seem fit. 29 Y. c. 28, s. 5. 
 
 a i 
 
[106] 
 
 COUET OF CHANCERY. 
 
 50. The Court, where relief is granted, shall direct a record 
 of such relief having been granted to be made by indorsement 
 on the lease or otherwise. 29 V. c. 58, s. 6. 
 
 51. The two preceding sections shall be applicable in the 
 case of leases for a term of years absolute, or determinable on 
 a life or lives or otherwise, and also in the case of a lease 
 for the life of the lessee or the life or lives of any other person 
 or persons. 29 V. c. 8, s. 9. 
 
 PARTITION. 
 
 52. In any suit in the Court of Chancery for partition or 
 sale of the estate of joint tenants, tenants in common or co- 
 parceners, where any of the persons interested in the lands 
 whereof partition or sale is sought are unknown to the plain- 
 tiff, or have not been heard of for three years or upwards, the 
 Court shall have the same jurisdiction that, in proceedings 
 under the " I'he Partition Act," it possesses for the purpose of 
 binding the Interests of such persons and dealing with the 
 estate of such of them as by reason of long continued absence 
 may reasonably be believed to be dead ; and the like proceed- 
 ings may be taken in such suit for the said purposes as might be 
 taken upon a petition under the said Act ; and every deed or 
 vesting order made in any such suit shall have the same effect 
 as a deed or vesting order made in proceedings under the said 
 Act. 40. V. c. 8, s. 38. 
 
 For the jurisdiction which the Court possesses under " The Partition Act," see 
 R. S. O. c. 101. 
 
 53. In 'regard to the partition and sale of estates of joint 
 tenants, tenants in common and coparceners, the Court, in 
 addition to the powers which it possesses under " The Partition 
 Act" and the preceding section, shall possess the same jurisdic- 
 tion as by the laws of England on the tenth of August, one 
 thousand eight hundred and fifty, was possessed by the Court 
 of Chancery in England, and also as by the laws in force in 
 Ontario is possessed by the Courts of Queen's Bench and Com- 
 mon Pleas. C. S. U. C. c. 12, s, 45 ; 32 V. c. 33, s. 43. 
 
 The Court will not decree the partition of lands, the title to which is vested in 
 the Crown ; neither will it decree the sale of such lands at the instance of the 
 representatives of a deceased locatee, Abell v. Weir, 24 Gr. 464 ; nor is the right 
 which a squatter acquires bv being in possession of lands of the Crown such an 
 interest as will be partitioned among his heirs, Jenkins v. Martin, 20 Gr. 613. 
 
 Where on the hearing of a cause for partition it was shewn that a division of 
 the land would be less beneficial to the owners than a sale, the Court without 
 waiting for any return to that effect, ordered the lands to be sold, Bennett v. 
 Bennett, 8 Grant, 446 ; Steven v. Hunter, 14 Gr. 641. 
 
m 
 
 PARTITION. 
 
 [107] 
 
 Where a decree, which reserved no further directions, directed that a sale or 
 partition of the property should take place according as the master should consider 
 either course more for the interest of the parties, but contained no directions as to 
 the conveyance or posaessiop, or the execution of deeds, and the master reported 
 in favour of partition ; the Court on motion, ordered the execution of conveyances, 
 and the delivery of possession, O'Lone v. O'Lone, 2 Grant, 642 ; and see as to con- 
 firmation of report in partition, Dunn v, Dowling, 1 Ch. Ch. B. 365. 
 
 The fact that there is an outstanding term in lands to portions of which infants 
 are entitled, is no defence to a bill of partition, although it may influence the Court 
 ir deciding between a sale or partition of the estate, Fitzpatrick v. Wilson, 12 
 Grant, 440. 
 
 In suits between joint owners for partition or sale, the costs are to be borne by 
 the parties in proportion to their respective interests in the property, except that 
 in the case of partition, the Court, it it sees fit, may give no costs to either party 
 up to the hearing, Cartwright v. Diehl, 13 Grant, 360 ; Bernard v. Jarvis, 1 Ch. 
 Ch. R. 24. 
 
 The costs in partition suits are, as in other suits, party and party costs ; and 
 where any of the parties are not sul Juris costs as between solicitor and client, are 
 not decreed even by consent, Harkness v. Conway, 12 Grant, 449 ; and see Carroll 
 V. Carroll, 23 Gr. 438, as to costs of a suit brought in the names of infants for the 
 partition » id sale of an estate for the purpose of discharging a mortgage thereon. 
 
 If one of several co-tenants create an incumbrance on his undivided share, and 
 institutes proceedings to obtain a partition of the estate, the incumbrancer must 
 be brought before the Court, and the party who created the charge must bear any 
 additional expense occasioned thereby, McDougall v, McDougall, 14 Gr. 267. 
 
 As to allowance for improvements, see Foster v. Emerson, 5 Gr. 135 : Wood v. 
 Wood, 16 Gr. 471 ; Biehn v. Biehn, 18 Gr. 497 ; Hovey v. Ferguson, 18 Gr. 498. 
 
 Where on partition one tenant in common, who has been in possession, makes 
 a claim for improvements, he must account for his occupation, Rice v. George, 20 
 Gr. 221 ; Teasdale v. Sanderson. 33 Beav. 534. 
 
 54. In such cases, any decree, order or report by which a 
 partition or sale is declared or effected, or any deed executed 
 by any officer of the Court, or other person appointed by the 
 Court to execute the same, to give effect to such partition or 
 sale, shall have the same effect at Law and in Equity as the 
 record of a return in the Court of Queen's Bench and Common 
 Fleas has in matters of partition, or as Sheriff's deeds now have 
 in other cases. C. S. U. C. c. 12, s. 46 ; 40 V. c. 7, sched. A 
 (43). 
 
 65. Any partition or sale made by the Court shall be as 
 effectual for the apportioning or conveying away of the estate 
 or interest of any married woman, infant or lunatic, party to 
 the proceedings by which the sale or partition is made or 
 declared, as of any person competent to act for himself. C. S. 
 U. C. c. 12, s. 47 ; 32 V. c. 33, s. 44. 
 
 56. An office copy of the decree, order or report declaring 
 a partition, shall be sufficient evidence in all Courts of the par- 
 tition declared thereby, and of the several holdings by the 
 parties of the shares thereby allotted to them. C. S. U. C. c. 
 12,8.48; 32 V. C.33, s. 44. 
 
 
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 [108] 
 
 COURT OP CHANCERY. 
 
 LUNATICS. 
 
 67. The word " Lunatic" in the subsequent sections of this 
 Act shall include an Idiot or other person of unsound mind. 
 C. S. U. C. c. 12, s. 32. 
 
 The words "lunatic," "idiot," "unsound mind" are the legal terms usually 
 introduced into modern Acts of Parliament to denote mental incapacity. The 
 latter term is that which is moat commonly used, as included in the expression 
 *' non compoj mentis," and less open to object) i than either of the other terms, 
 ex parte Barnsley, 3 Atk. 168 ; and see re McSV ry, 10 Gr. 390. 
 
 A person whom it was sought to have declared a lunatic was shewn to be in a 
 state of mindlfdescribed as " senile imbecility" : — Held that he might properly be 
 declared a lunatic, re Kelly, 6 Fr. R. 220. 
 
 58. In the case of Lunatics, and their property and estates 
 the jurisdiction of the Court shall include that which in Eng- 
 land is conferred upon the Lord Chancellor by a Commission 
 from the Crown, under the Sign Manual. C. S. U. C. c. 12, s. 
 31. 
 
 As to the distinction between the jurisdiction exercised by the Lord Chancellor 
 in Chancery and in Lunacy, see Murray v, Frank, 2 Dick. Ch. 535 ; Sherwood v. 
 Sanderson, 19 Yep. 280. lor a recent and very important case which illustrates 
 the peculiar nature of the Chancellor's jurisdiction in Lunacy, see Beall v. Smith, 
 L. R. 9 Chan. 85. 
 
 Inquisition by Commission. 
 
 59. When a Commission has been issued and an inquisition 
 thereupon returned into Court, by which a person is found 
 lunatic, in case any one entitled to traverse the inquisition 
 desires to do so, he may, within three months from the day of 
 the return and filing of the inquisition, present a petition for 
 that purpose to the Court, and the Court shall hear and deter- 
 mine the petition subject to the following provisions. 
 
 2. In every order giving effect to such petition, the Court 
 shall limit a time not exceeding six months from the date of 
 the order, within which the person desiring to traverse, and all 
 other proper parties, shall proceed to the trial of the traverse ; 
 but the Court may under the special circumstances of any 
 case, and upon a petition being presented for that purpose, and 
 upon the circumstances being substantiated upon affidavit, 
 allow the traverse to be had or tried after the time limited ; 
 and in such special case, the Court may make such orderb as 
 seem just. 
 
 3. The trial may be ordered to take place in any Court of 
 Record in Ontario, or before a Judge of tne Court of Chancery 
 
LUNAOl. 
 
 [109] 
 
 with or without the aid of a jury, according to the circumstan- 
 ces of the case and the situation of the parties. C. S. U. C. c. 
 12, s. 34 (1-2). 
 
 4. The Court may order that the person to traverse, if he is 
 not the party who has been found lunatic, shall, within one 
 month after the date of the order file, with such officer as the 
 Court may appoint, a bond, with one or more sureties, in favour 
 of the registrar for the time being, and conditioned for all 
 proper parties proceeding to the trial of the traverse within 
 the time limited ; such bond before the filing thereof being ap- 
 proved of and certified to be sufficient by the Judge of the 
 County Court of the County in which the parties reside, or b 
 
 one of the Judges or Masters of the Court of Chancery. 
 U. C. c. 12, s. 34 (3), 39 V. c. 7, s. 2, Sch. B. 
 
 C 
 
 1 
 
 5. Every person who does not present his petition, or who 
 neglects to give the security, or who does not proceed to the 
 trial of the traverse, within the *imes respectively limited 
 therefor, and the heirs, executors and administrators of every 
 such person, and all others claiming through him, shall be 
 absolutely barred of the right of traverse. C. S. U. C. c. 12, s. 
 34 (4). 
 
 <UM 
 
 jraverse to the return of an inquisition finding a person nnf compos mentis 
 I a right by law, though the Court is not dissatisfied with the return upon 
 the evidence, ex parte Feme, 5 Ves. 832; ex parte Wragg, 5 Ves. 450; ex patte 
 Ward, 6 Ves. 579 ; ex parte Cranmer, 12 Ves. 445; Sherwood v. Sanderson, 19 Ves. 
 280. A finding of sanity cannot be traversed, Hume v. Burton, 1 Ridg. P.C. 213. 
 
 A part^ having been found a lunatic under two inquisitions, the Court refused 
 to allow him to traverse the second ; but such inquisitions are not conclusive, and 
 may be again questioned in actions at law or by suits in equity, ex parte Barnsley, 
 3 Atk. 184. 
 
 A person traversing an inquisition is considered in the nature of a defendant 
 opposing the title found for the Crown, and not in the nature of a plaintiff, Regina 
 V. Mason, 2 Salk. 447 ; Rex v. Roberts, 2 Str. 1208. 
 
 The alienee of a lunatic, or other person having a title to or interest in his 
 lands, may traverse an inquisition as well as the lunatic himself, and a person who 
 has entered into a contract with a non compos for the purchase of any portion of his 
 property, is such an equitable alienee as will give him the right to traverse, Shel- 
 tora on Lunacy, 120. 
 
 The Court may, upon petition, quash a commission of lunacy and the inquisi- 
 tion taken under it, without putting the party to the expense and delay of a 
 traverse, re Milne, 11 Gr. 153 ; but where the Judge who granted the commission 
 thought a, prima facie case of insanity made out, and the jury found the insanity, 
 the Court, though quashing the inquisition, refused to charge the party apply- 
 ing for the commission with costs. Ibid. The cost of suing out a commission of 
 lunacy were held to be a debt as against the assets left by the lunatic, though at 
 his death a traverse of the lunacy, leave for which had been obtained on the lunatic's 
 own application, was pending, re Cumming, 18 Jur. 181. 
 
 60. In case the Court br dissatisfied with the verdict re- 
 turned upon a traverse, the Court may order a new trial, or 
 
[110] 
 
 COURT OP CHANCERY. 
 
 more than one new trial as in other cases. C. S. U. C. c. 12, 
 s. 36. 
 
 Inquisition without Commisnion. 
 
 61. Instead of issuing a Commission of Lunacy, the Court 
 in lieu thereof may, with or without the aid of a jury (which 
 the Court or a Judge thereof may cause to be empanelled as in 
 other cases) hear evidence and inquire into and determine 
 upon the alleged lunacy ; but the alleged lunatic shall have a 
 right in such cases to demand that the inquiry be submitted to 
 a jury or the Court may order that the inquiry be had before 
 any Court of Record. 28 V. c. 17, s. 5 ; first part. 
 
 Before granting an order declaring a person a lunatio he must be served with 
 notice of the application, and anv counsel, or other person he may desire to see in 
 relation to the matter, must be allowed acness to him, re Miller, 1 Ch. Ch. B. 215. 
 As to the evidence necessary to dispense with such service as dangerous to the luna- 
 tic, or useless, see re Newman, 2 Ch. Ch. B. 390 ; re Mein, 2 Ch. Ch. R. 429. 
 
 An alleged lunatio should receive the same notice of a trial before the Court as 
 of an inquisition under the former practice, re McNuIty, 13 6r. 463. 
 
 On an amplication in Lunacy, the Court ordered the Sheriff to empanel a jurv for 
 the then next sittings of the Court. The matter was not proceeded with until the 
 sittings succeeding the next, and the matter then coming on, held that the panel 
 was not properly constituted ; that the Sheriff's authority to summon a jury was 
 confined to the nrst sittings t^ter the date of the order, re McNulty, 13 6r. 463. 
 
 6)8. Where any such inquiry is had by the Court, with or 
 without the aid of a jury, or before a Court of Record, no tra- 
 verse shall be allowed, but the Court, if dissatisfied with the 
 finding of a jury, may, at the instance of any party who would 
 be entitled to traverse an inquisition under commission of 
 lunacy, direct a new trial or new trials from time to time upon 
 application therefor made to the Court within three months 
 from the time the verdict is rendered, or such further time as 
 the Court, under special circumstances, may permit, and sub- 
 ject to such directions, and upon such conditions as to the 
 Court may seem proper, and the Court may order any such 
 new trial to be had before the same Court in which the verdict 
 was rendered or before any other Court. 28 V. c. 17, s. 6. 
 
 Ab to traversing, see notes to section 69. 
 
 63. On every such inquiry, the alleged lunatic, if he be 
 withiu the jurisdiction of the Court, shall be produced and 
 shall be examined at such times and in such manner either in 
 open Court or privately before the jury shall retire to consult 
 about their verdict, as the presiding Judge may direct, unless 
 the Court ordering such inquiry shall beforehand, by order, 
 have dispensed with such examination. 28 V. c 17| s. 7. 
 

 ■^^ 
 
 LUNACY. 
 
 [Ill] 
 
 Subject of Inquiriea Limited. 
 
 64. Every inquiry, under a Commission of Lunacy, or before 
 any such Courfc of Record, shall be confined to the question, 
 whether or not the person who is the subject of inquiry is, at 
 the time of such inquiry, of unsound mind and incapable of 
 mana^ng himself or his affairs, and the verdict rendered by a 
 jury shall, in every case, be returned to the Court, certified by 
 the Judge before whom the inquiry has been had, and shall be 
 final as to the question on such inquiry, unless the same be set 
 aside. 28 V. c. 17, s. 5. 
 
 The great object contemplated in all the proceedings is the promotion of the 
 benefit and advantage of the particular individual, re Dyce, Sombre, 1 Mac. & 6. 
 116 ; Oxenden v. Compton, 2 Ves. 69. There are cases m which the Court, in the 
 exercise of its discretion, may consider that the proceedings would not tend to 
 this end, though the mental infirmity may be such as fully to suppoi-t them, Lord 
 Ward's case, 2 M. & K. 54 ; Brodie v. Barry, 2 V. & B. 36 ; ana there are others 
 in which, even from a less degree of mental incapacity, it is necessary for the 
 interests of the individual that he and his property should receive protection, 
 Gibson f. Jeyes, 6 Yes. 267 ; Bidgeway v. Darwin, 8 Ves. 06 ; re Holmes, 4 Buss. 182. 
 
 Sv/mmary Applications. 
 
 65. The Court may, on sufficient evidence, declare a person 
 a lunatic without the delay or expense of issuing a commission 
 to inquire into the alleged lunacy, except in cases of reason- 
 able doubt ; and any person who might traverse an inquisition 
 to the same effect, may move against the order containing the 
 declaration, or may appeal therefrom, as the case requires ; and 
 the right so to move or appeal shall as to time be subject to the 
 same rules as the right to traverse. C. S. U. C. c. 12, ss. 33 & 35. 
 
 A Judge sitting in Chambers had jurisdiction to issue a commission in lunaov, 
 re Stuart, 4 Gr. 44 ; so an application under this section may be to a Judge in 
 Chambers. 
 
 An application to declare a person a lunatic without the expense of a commis- 
 sion must be supported by affidavits of more than one medical man, and notice 
 should be given to the lunatic. The fitness of the proposed committee must be 
 shewn on affidavit, re Patton, 1 Ch. Ch. B. 192 ; re Fleming, 13 U. 0. L. J., N. S. 
 197; and see Mclntyre v. Kingsley, 1 Ch. Ch. B. 281. 
 
 As to the evidence necessary to dispense with service, see re Xewman, 2 Ch. 
 Ch. B. 390 ; re Mein, 2 Ch. Ch. B. 429. 
 
 Protection of Property of Lunatics. 
 
 66. In order to afford due protection to the property of 
 lunatics, the following provisions shall in every case be ob- 
 served : 
 
 1. The Committee of the estate shall, within six months 
 after being appointed, file in the office of such officer as may 
 
 * 'M 
 
 
 m 
 
 
[112] 
 
 COURT OP CHANCERY. 
 
 be appointed by the Court for that purpose a true inventory 
 of the whole real and personal estate of the lunatic, stating 
 the income and profits thereof, and setting forth the debts, 
 credits and effects of the lunatic, so far as the same have come 
 to the knowledge of the Committee ; 
 
 2. If any property belonging to the estate be discovered 
 after the filing of an inventory, the Committee shall file a true 
 account of the same from time to time, as the same is dis- 
 covered ; 
 
 3. Every inventory shall be verified by the oath of the 
 Committee; and 
 
 4. The Committee of the estate shall give two or more re- 
 sponsible persons as sureties, in double the amount of the per- 
 sonal estate, and of the annual rents and profits of the real 
 estate, for duly accounting for the same once in every year, or 
 of tener if required by the Court, and for filing the inventory 
 aforesaid ; and the security shall be taken by bond or recogniz- 
 ance in the name of any officer appointed by the Court for that 
 purpose, in such manner as the Court or a Master thereof 
 may direct, and the same shall be filed in the office of any 
 officer appointed by the Court for that purpose. C. S. U. C. c. 
 12, s. 37 (1-4) ; 39 V. c. 7, s. 2, Sched. B. 
 
 The Court cannot appoint a committee of a lunatic on his giving his own 
 security only, re Ward, 2 Ch. Ch. R. 188 ; but where the personal estate of the 
 lunatic cjnsisted of a mortgage for a large amount which was over due, and the 
 object in getting a committee appointed was to take proceedings to foreclose, the 
 committee was ordered to give security in double the annual income of the real 
 estate, and double the amount likely to be realized from the personal estate, re 
 Davis, V. C. Mowat, 25th Feb., 1867. 
 
 The committee of the rorson does not give security and will not be accepted as 
 a surety for the committee of the estate, re Burton, ex parte Mount, 21 L. J. 
 Chy. 221. 
 
 As to the powers, duties, and liabilities of a committee of a lunatic's eBtate, see 
 re Shaw, 15 Gr. 619; and Elmer's Fr. in Lunacy 83. 
 
 The control of the Court over the estate ceases with the death of the lunatic, so 
 an order for the distribution of the estate of a deceased lunatic cannot be made under 
 the proceedings in Lunacy. Where a lunatic died, the committee took under 
 authoritv of the Court, proceedings for the administration of the estate by applying 
 for an aaministration order, which was granted, the proceedings being mreoted to 
 be as inexpensive as possible, re Brillinger, 3 Ch. Ch. B. 290 ; and see ex parte 
 Clarke, Jac. 592 ; re Barry, 1 Moll. 414. 
 
 The jurisdiction continues, however, to a certain extent from the necessity of 
 the case. Thus the control which the Court has over the committee does not 
 determine by the lunatic's death, but he continues liable to account, and to all the 
 consequences of misconduct on his part^ and bound to act in delivering possession 
 of tile estate as the Court may direct, re Fitzgerald, 2 S. & L. 440. So a receiver 
 of the limatic's estate may be ordered to contmue acting until arrears of rents and 
 
 Srohte due at the time of the lunatic's death are paid and satisfied, «eparte Clarke, 
 ac 689. An order or report may also be made, after the Itmatio's death, upon a 
 
LUNACY. 
 
 [113] 
 
 or 
 
 proceeding originating prior to it, when such order or report is for the purpose of 
 winding up the Lunacy, ex parte Armstrong, 3 Bro. 237, re McDougalj 12 Ves. 38t ; 
 or for enforcing obedience to orders made during the lunatic's lifetime, ex parte 
 Boberts, 3 Atk. 308. 
 
 The officer of the Court to whom the bond required by the 4th sub-sec. is to be 
 given is the Referee in Chambers, Gen. Ord. 631 ; and the bond and inventory are 
 to be filed with the Clerk of Records and Writs, Gen. Ord. 632. 
 
 67. Wherever the personal estate of a lunatic is not suffi- 
 cient for the discharge of his debts, the following steps may 
 be taken : — 
 
 1. The Committee of his estate shall petition for authority 
 to mortgage, lease or sell so much of the real estate as may be 
 necessary for the payment of such debts ; 
 
 2. Such petition shall set forth the particulars and amount 
 of the estate real and personal of the lunatic, the application 
 made of any personal estate, and an account of the debts and 
 demands against the estate; 
 
 3. The Court shdl, by one of the Masters or otherwise, 
 inquire into the truth of the representations made in the peti- 
 tion, and hear all parties interested in the real estate ; 
 
 4. If it appears to the Court that the personal estate is not 
 sufficient for the payment of debts, and that the same has been 
 applied to that purpose as far as the circumstances of the case 
 render proper, the Court may order the real estate or a sufficient 
 portion of it to be mortgaged, leased or sold either by the 
 Committee or otherwise ; 
 
 5. The Court shall direct the Commitee to discharge such 
 debts, out of the money so raised, and the Court may order the 
 Committee to execute conveyances of the estate, and to give 
 security for the due application of the money, and to do such 
 other acts as may be necessary in such manner as the Court may 
 direct ; and 
 
 6. In the application of any moneys so raised, the debts shall 
 be paid in equal proportion without giving any preference to 
 those which are secured by sealed instruments. C. S. U. C. c. 
 12, s. 38 (1-6). 
 
 When the estate of a lunatic is small, the Court will combine in one reference 
 to the Master all the usual inquiries, although the several objects may be in Eng' 
 land, the subject of separate references, re Duggan, 2 Gr. 622. 
 
 Although the general rule is that no course vrill be taken that will prejudiciallv 
 aSect the interests or comfort of the lunatic, even for the benefit of craditors, stiU 
 
 '! \ 
 
11' 
 
 [114] 
 
 COUKT OF CHANCERY. 
 
 the Court will asBist orediton where that can be done without prejudice to the luna- 
 tic, and where the Court, by its orders, has induced creditors to prove their debts 
 in the matter of the lunacy, and thus prevented ihjm from proceeding at law, 
 queen, whether the Court is not bound to afford them relief, even to the preiudioe 
 of the lunatic's estate, re Shaw, 14 Gr. 624. The Coiirt will exercise a wide discre- 
 tion as to the disposition of a lunatic's estate, and when it appears to be necessary, 
 will order a sale and disposition and authorize the committee to collect rents, &c., 
 rt Keenan, 2 Ch. Ch. K. 492. 
 
 When the heirs-at-law or next of kin of a lunatic are unknown, or reside at a 
 distance, and service on them would be attended with great expense, the Court may 
 dispense with service upon them of notice of a sale of the real estate, rt McGrath, 
 2 Ch. Ch. R. 435. Where there are no kindred, notice of the proceedings should be 
 given to the Attorney-General, re Early, 2 Coop. temp. Cottenham 1^ : ex parte 
 Watson, Jac. 161. 
 
 68 When the personal estate, and the rents, profits and in- 
 come of the real estate of the lunatic, are insufficient for his 
 maintenance or that of his family, or for the education of his 
 children, an application may be made by the Committee, or 
 by any member of the family of the lunatic, that the Committee 
 be authorized or directed to mortgage or sell the whole or part 
 of the real estate, as may be necessary ; upon which the like 
 reference and proceedings shall be had, and a like order made, 
 as for the payment of debts. C. S. U. C. c. 12, s, 39. 
 
 69. In case of any mortgage, lease or sale being made, the 
 lunatic and his heirs, next of kin, devisees, legatees, executors, 
 administrators and assigns, shall have the like interest in the 
 surplus which remains of the money raised as he or they would 
 have in the estate, if no mortgage, lease or sale had been made ; 
 and such money shall be of the same nature and character as 
 the estate mortgaged, leased or sold ; and the Court may make 
 such orders, as are necessary for the due application of the 
 surplus. C. S. U. C. c. 12, s. 40. 
 
 One of several heirs of an intestate being a lunatic, an Act of Parliament was 
 obtained authorizing the sale of the intestate's lands, and the investment of the 
 lunatic's share in government securities, or mortgages, for the benetit of the lunatic 
 "and his representatives." The lunatic afterwards died, and in a proceeding to 
 distribute his share, it was held that this share, for the purposes oi distribution, 
 retained the character of realty, and was to be divided between his real rdpresenta- 
 tives, and not his next of kin, Campbell v. Campbell, 19 Gr. 254. 
 
 70. When a lunatic is seised or possessed of real estate, 
 by way of mortgage, or as a trustee for others in any manner, 
 the Committee may apply to the Court for authority to convey 
 such real estate to the person entitled thereto, in such manner 
 as the Court may direct ; and thc;j 2upon the like proceedings 
 shall be had as in the case of an application to sell the real 
 estate ; and the Court upon hearing all the parties interested 
 may order a conveyance to be made ; and on the application, 
 by bill or petition, of any person entitled to a conveyance, the 
 
LUNACY. 
 
 [116] 
 
 Committee may be compelled by the Court, after hearing all 
 parties interested, to execute the conveyance. C. S. U. C. c. 
 12. s. 41. 
 
 7 1. Every conveyance, mortgage, loase and assurance made 
 by the Committee under direc^ a of the Ccai'i pursuant to 
 any of the provisions of this Act, shall be R' /alid as if executed 
 by the lunatic when of sound mind. • ' S. U. C. c. 12, s. 42. 
 
 7!8. The Court may Compel the specific performance of any 
 contract made by a lunatic while capable of contracting, and 
 may direct the Committee to execute all necessaiy conveyances 
 for the purpose; and the purchase money, or so much thereof 
 as remains unpaid shall be paid to the Committee or otherwise 
 as the Court directs. C. S. U. C. c. 12, s. 43. 
 
 i| 
 
 General Provisions. 
 
 73. Any order by a single Judge in a matter of lunacy, shall 
 be subject to rehearing, and to appeal to the Court of Appeal 
 within the same times and under the same conditions as in 
 other cases in the said Court of Chancery, unless the said Court, 
 or a Judge thereof, otherwise orders. 28 V. c. 17, s. 8. 
 
 74. The Court may order the costs, charges and expenses of 
 and incidental to the presentation of any petition for a com- 
 mission of lunacy or to any inquiry, inquisition, issuo. traverse, 
 order, direction, conveyance or other proceeding in lunacy, 
 to be paid either by the party or parties presenting such peti- 
 tion or prosecuting the same, or such inquiry or other proceeding 
 in lunacy, or by the party or parties opposing the same, or 
 out of the estate of the lunatic or alleged lunatic, or partly 
 in one way and partly in another. 28 V. c. 17, s. 9; C. S. U. 
 C. c. 12, s. 44. 
 
 INFANTS. 
 
 75. The Court shall also have jurisdiction respecting the 
 custody of infants in the cases and subject to the provisions 
 mentioned in The Rt ',8ed Statute respecting the Custody of 
 Infants. C. S. U. C. c. 12, s. 4a 
 
 See notes to Judicature Act, s. 17, aub-s. 9. 
 
 76. Where an infant is seised or possessed of or entitled to 
 any real estate in fee, or for a term of years, or otherwise how' 
 
 H' 
 
[116] 
 
 COXJRT OF CHANCERY. 
 
 ; r'^:i 
 
 
 '« 
 
 k% ■ 
 
 soever, in Ontario, and the Court is of opinion that a sale, lease 
 or other disposition of the same or of any part thereof, is neces- 
 sary or proper for the maintenance or education of the infant, 
 or that, by reason of any part of the property being exposed to 
 waste and dilapidation, or to depreciation from any other cause, 
 his interest requires or will be substantially promoted by such 
 disposition, the Court may order the sale, or the letting for a 
 term of years, or other disposition of such real estate or any 
 part thereof, to be made under the direction ol the Court or 
 one of its officers, or by the guardian of the infant, or by any 
 person appointed by the Court for the purpose, in such manner 
 and with such restrictions as to the Court may seem expedient, 
 and may order the infant to convey the estate as the Court 
 thinks proper. C. S. U. C. c. 12, s. 50. 
 
 For the mode of proceeding under this section see Ord. 527 ei »eq. 
 
 In directing the sale of infants' real estace, the Court is not governed by the 
 consideration of what is most for their present comfort, but what is for their ulti- 
 mate benefit ; the Court will order a sale of a portion of an infant's estate to save 
 the rest when it is made to appear to be for the benefit of the infant, r« McDonald, 
 1 Ch. Ch. R. 97. 
 
 The Court will not direct a sale of the real estate of an infant merely because 
 the ancestor was indebted ; it must be shewn that the estate will sus^^ain loss, or 
 that the creditors are about to enforce payment of their demands by suit, re Boddy 
 4 6r. 144 ; and see re Barker, 6 Prac. R. 225. 
 
 An application to confirm a sale of an infant's estate was refused where it was 
 not shewn that a sale was necessary for the maintenance of the infant, or that by 
 reason of the property being exposed to waste or dilapidation, or to depreciation 
 from any other cause, the interests of the infant would be promoted by a sale, and 
 where also it appeared that the proceeds of the sale would not produce as large a 
 sum as the property would be rented for if put in a proper state of repair, re 
 Phelan, 6 Prac. R. 259. 
 
 On applying for the sale of real estate settled upon infants, the mother by whc m 
 the application was made, was required to join in the conveyance for the purpose 
 of surrendering the life interest vested in her under the settlement, re Kennec&, 1 
 Ch. Ch. R.97. 
 
 Where the estate of the infant is small it is usual to advertise for tenders, to 
 save the expense of a sale by auction, re Hansell, 1 Ch. Ch. R. 189. 
 
 Where a reference is directed to a Master to inquire what would be a proper sum 
 to allow for the maintenance and education of an infant, the order should not con- 
 tain any authority for the payment, until the report is brought before the Court 
 for approval, Murphy v. Lamphier, 12 Gr. 241. 
 
 Where an infant's estate had been sold for $700, an application to invest the 
 proceeds in the purchase of a small farm upon which it was intended that the 
 father of the infant should reside with the infant, was refused, re Mason, 3 Ch. 
 Ch. R. 426. 
 
 Where a contract for the sale of an infant's estate had been approved of bv the 
 Court, it is not necessary for the purpose of obtaining a decree for specific perfoim- 
 ance, to allege that the sale was a proper one under this statute, McDonald v, 
 Garrett, 8 Gr. 290. 
 
 On an application under this section for the sanction of the Court to a renewal 
 of a lease made by the the infant's ancestor, and containing a covenant for rer.ewal, 
 none of the circumstances under which alone the Court is empowered to act, being 
 alleged, an order was refused, re Jackes, 3 U. C. L. J. N. S., 70 ; such an applica* 
 tion can be made under the Imp. Act, 11 Geo. I'V. & 1 Wm. IV. c 66, b. 16, /did. 
 
lie, lease 
 is neces- 
 e infant, 
 posed to 
 er cause, 
 by such 
 ing for a 
 or any 
 Court or 
 r by any 
 1 manner 
 spedient, 
 le Court 
 
 tied by the 
 ir their ulti- 
 itate to save 
 McDonald, 
 
 ■ely because 
 ain loss, or 
 it, re Boiddy 
 
 vhere it was 
 1, or that by 
 depreciation 
 ''a sale, and 
 :e as large a 
 3f repair, rt 
 
 ler by whc m 
 the purpose 
 Kennedy, 1 
 
 r tenders, to 
 
 proper sum 
 lUd not con- 
 re the Coiurt 
 
 invest the 
 led that the 
 lason, 3 Ch. 
 
 ^ed of by the 
 ific perfonn- 
 VIoDonald v. 
 
 to a renewal 
 for rer.ewal, 
 bo act, being 
 
 1 an applica- 
 , B. 16, Ibid. 
 
 INFANTS. 
 
 [117] 
 
 The guardian of an infant appointed by the Court, without the sanction of the 
 Court, executed a lease for a term of years, durinsr the existence of which the infant 
 died, and an application having been made for the tenant to deliver up possession 
 he was ordered to do so, and on payment into Court of the arrears of rent, he was 
 
 Sermitted to remove the buildings and erections put by him upon the property, 
 oing no damage to the freehold, but the Court refused to make him any allowance 
 out of the rents, for improvements made by him on the property, Townsley v. Neil, 
 10 Gr. 72. 
 
 77. But DO sale, lease or other disposition shall be made 
 against the provisions of any will or conveyance by which the 
 estate has been devised or granted to the infant or for his use. 
 C. S. U, C. c. 12, s. 51. 
 
 Where proi>erty was devised b^ a testator to his widow for the maintenance of 
 his family, until the youngest child should come of age, and then to one of his 
 sons charged with certain payments to his widow and the children, with a provision 
 for the substitution of another son in the event of the devisee dying under age or 
 without issue, it was held that the Court had no jurisdiction to order a sale or 
 mortgage of such property, and that such property was not the property of the 
 infants within the meaning of the Act, re Callicott, 1 Ch. Ch. B. 182 ; and see also 
 re Smith, 6 Prac. B. 282. 
 
 As to the power of the Court to order leases of infants' lands, unless the infant 
 is indefeasibly seised in fee or in tail in possession, see ex parte Evans, 2 M. & K. 
 318 ; ex parte Legh, 15 Sim. 445 ; re Clark, L. E. 1 Ch. App. 292. 
 
 78. The application shall be in the name of the infant by 
 his next friend, or by his guardian; but shall not be made 
 without the consent of the infant if he is of the age of fourteen 
 years or upwards. C. S. U. 0. c. 12, s. 62 ; 40 V. c. 7, sched. 
 A (47). 
 
 The examination of the infant as to his consent, taken under order 532, must 
 be annexed to the petition. A certiBcate of the master stating that the infants 
 have been examined; by him, and that they consent, is insufficient, re Axford, 6 
 Prac. B. 192. 
 
 79. Where the Court deems it convenient that a conveyance 
 should be executed by some person in the place of an infant, 
 the Couifc may direct some other person in the place of the in- 
 fant to convey the estate. C. S. U. C. c. 12, s. 53. 
 
 80. Every su^h conveyance whether executed by the infant 
 or some person appointed to execute the same in his place, 
 shall be as effectual as if the infant had executed the same, and 
 had been of the age of twenty-one years at the time. C. S. 
 U. C. c. 12, s. 54. 
 
 81. The moneys arising from any such sale, lease or other 
 disposition, shall be laid out, applied and disposed of in such 
 manner as the Court directs. C. S. U. C. c. 12, s. 55. 
 
 See notes to section 76. 
 
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[118] 
 
 COURT OP CHANCERY. 
 
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 82. On any sale or other disposition so made, the money 
 raised, or the surplus thereof, shall be of the same nature 
 and character as the estate sold or disposed of ; and the heirs, 
 next of kin, or other representatives of the infant, shall have 
 the like interest in any surplus which may remain of the 
 money at the decease of the infant, as they would have had in 
 the estate sold or disposed of if no sale or other disposition 
 had been made thereof. C. S. U. C. c. 12, s. 66. 
 
 See note to section 69. 
 
 83. If any real estate of an infant is subject to dower, and 
 the person entitled to dower consents in writing to accept in 
 lieu of dower any gross sum which the Court thinks reason- 
 able, or the permanent investment of a reasonable sum in such 
 manner that the interest thereof be made payable to the per- 
 son entitled to dower during her life, the Court may direct the 
 payment of such sum in gross or the investment of such other 
 sum, out of the proceeds of the sale of the real estate of the 
 infant. C. S. U. C. c. 12, s. 57. 
 
 84. The Court shall also have power to remove testament- 
 ary guardians and trustees for the same causes as it has power 
 to remove other guardians and trustees, 40 V. c. 8, s. 31 (3). 
 
 As to the removal of trustees by the Court, see Lewin on Trusts (7th ed.) 718, 
 724; Hill on Trustees (2nd ed.) 191. 
 
 SETTLED ESTATES. — SPECIAL CASES. 
 
 85. The Court shall have the same jurisdiction as the Court 
 of Chancery in England had on the eighteenth day of March, 
 186', in regard to leases and sales of settled estates, and in re- 
 gard to enabling infants, with the approbation of the Court, 
 to make binding settlements of their real and personal estate 
 on marriage; and in regard to questions submitted for the 
 opinion of the Court in the form of special cases on the part 
 of such persons, as may by themselves, their committees or 
 guardians, or otherwise, concur therein. 28 V. c. 17, s. 1. 
 
 The jurisdiction exercised by the Court of Chancery in England, in regard to 
 leases and sales of settled estates, is regulated by the Imp. Acts 19 & 20 Vic. c. 
 120 ; 21 & 22 Vic. o. 77 ; 25 & 26 Vic. c. 108 ; & 28 Vic. c. 45. 
 
 As to what are settled estates within the meaning of these Acts, see re Laing's 
 Settled Estates, L. B. 1 Eq. 416 ; re Greene, 10 Jur. N. S. 1098 ; re Bardin's Will. 
 7 W. R. 711 ; re Clark, L. R. 1 Ch. App. 292. 
 
 As to the mode of applying to the Court and the parties who may do so, nee 
 Harvey v. Clark, 26 Beav. 7 ; Williams v. Williams, 9 W. R. 888 ; r« Thompson's 
 Settled Estates, Johns. 418 ; re Goodwin's Settled Estates, 3 Giff. 620. 
 
SinTLED ESTATES. 
 
 [119] 
 
 As to appointment of euardians for infants who may be interested, re Long- 
 staffe'B Settled EBtatea. 1 Dr. & S. 142 ; re Haigreaves ^^itled Estates, 7 W. R. 
 166 ; re Caddick's Settled Estates, 7 W. R. 334. 
 
 As to married women, and consents by them, see re Foster's Settled Estates, 24 
 Beav. 220 ; 1 D. & J. 386 ; r« LordDe Tabley's Settled Estates, 11 W. R. 936 ; re 
 Bendyshe, 3 Jur. N. S. 727. 
 
 As to the persons to be served with notice, or whose consent must be obtained, 
 re Boughton, 12 W. R. 34 ; re Turbutt, 8 L. T. N. S. 667 ; Eyre v. Saunders, 4 
 Jur. N. S. 830; Grey v. Jenkins, 26 Beav. 351 ; re Potts, 16 W. R. 29; re Brown, 
 11 W. R. 19. 
 
 If consent refused, lease cannot be made, however beneficial it might have 
 been to the estate ; re Merry's Estate, 16 W. R. 307 ; re Hutchinson, 14 W. R. 
 473 ; re Hurle's Settled Estate, 2 H. & M. 196 : but an order may be made "subject 
 to, and so as not to affect the rights, estate and interest of any person whose con- 
 sent has been refused or cannot be obtained," re Legge, 6 W. R. 20 ; re Parry, 34 
 Beav. 462 ; and see re Tarbutt, 8 L. T. N. S. 603, where the consent of a lunatic, 
 not so found by inquisition, was dispensed with. 
 
 As to re-investment of the proceeds arising from the sale, Wall v. Hall, 11 W. 
 R. 298 ; re Sexton Barns' Settled Estate, 10 W. R. 416. 
 
 As to costs, see re Parby's Settlement, 29 L. T. 72 ; re Marner, L. R. 3 
 Eq. 432. 
 
 The Imp. Act 18 & 19 Vic. c. 43, is that which enables minors in England to 
 make bindmg settlements of their real and personal estate on marriage. Under 
 this Act it has been held the Act does not impose on the Court any (lu.,j of en- 
 quiring as to the propriety of the marriage, but that it can consider the propriety 
 of the settlement only, re. Dalton, 3 Sm. & G. 331 ; 6 D. M. & G. 201 ; where the 
 lady's portion was considerable the Court referred the whole matter to Chambers, 
 re Olive, 11 W. R. 819. The Act extends to post-nuptial settlements, re Hoare, 11 
 W. R. 181 ; Powell v. Oakley, 34 Beav. 575 ; but the Court cannot approve of a 
 settlement originally made without its concurrence, re Fuller, (V. C. Stuart), 
 1860. 
 
 A petition is necessary though a suit is pending, Peareth v. Marriott, W. 
 N. (1866) 48. 
 
 The jurisdiction of the Court in England, as to special cases depends upon the 
 Imp. Act 13 & 14 Vic. c. 35. By that Act a hudband interested in right of his 
 wife in any question, may concur in a special case in his own name and in the 
 name of his wife, where she has no claim to an interest distinct from her husband, 
 and where a married wom&.i has such distinct interest she may concur in her own 
 right, provided her husband concurs also. The Committee of a lunatic must ob- 
 tain authority from the Court before he can concur. 
 
 An application for a guardian ad litem, or for a special guardian, on behalf of 
 an infant, for the purpose of concurring in a special case, should be made by 
 motion, re Goodfellow, 1 W. R. 446 ; and need not be by a next friend ; and 
 should be supported by an affidavit of the fitness of the proposed guardian, ex parte 
 Craig, 15 Jur. 762. 
 
 The father of the infant being a party to the special case and having no adverse 
 interest, it was held not necessary to appoint a guardian ad litem, Ellis v. Guitton, 
 18 L. T. 269 ; but the interest of the infant should at the hearing be protected by 
 separate counsel, Wright v. Woodham, 17 L. T. 293. 
 
 The affidavit should be styled " In the matter of the infant," and " In the 
 matter of the Act," Star v. iNcwberry, 20 Beav. 14 ; not "In the special case, &c.," 
 Maddison v. Skein, 6 L. T. N. 3. 2a 
 
 A special case may be amended, Thistlethwaite v. Gamier, 5 De G. & Sm. 73 ; 
 where it had been set down for hearing, Domville v. Lamb, 9 Hare, app. 66 ; and 
 even at the hearing. Bell v. Cade; 2 J. & H. 122 ; and it may on abatement be 
 revive".', Wilson v. Whatley, 1 J. & H. 331 ; Ainsworth v. Alman, 14 Beav. 597, 
 
 Generally the Court will only give its opinion on questions of construction, and 
 not bind the rights of parties, Bailey v. Collett, 23 L. J. Ch. 230. 
 
 As to what the Court will or will not decide on a special case, see Schroder 
 V. Schroder, Kay, 578 ; Evans v. Saunders, 1 Drew. 415, kXA ; Day v. Day, 18 Jur. 
 
 Kv;| 
 
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[120] 
 
 COURT OF CHANCERY. 
 
 1013 ; Leslie v. Thompson, 9 Hare, 268 ; Wilson v. Bennett, 20 L. J. Ch. 279 ; 
 Edwards v. Milbank, 4 Drew. 606 ; BeU v. Cade, 2 J, & H. 122 ; Earl of Tyrone v. 
 Marquis of Waterford, 1 D. F. & J. 613. 
 
 [Sees. 86 and 87 provide for the Court exercising jurisdiction in matters cogniza - 
 ble at Law, transferring suits to a Court of Common Law, and that no objectio n 
 ■hall be taken that the plaintiff haa a remedy at law.] 
 
 IN APPEALS UNDER REVISED STATUTE, CHAP. 27. 
 
 88. The Court shall also have jurisdiction on any appeal 
 from the judgment or decision of tha commissioners under 
 The Act to jyrevent Trespasses to Public Landsas provided in said 
 Act ; and the Court may revise, alter, affirm, or annul, such deci- 
 sion or order further inquiry, or direct an issue to be tried at 
 law or before the said Court of Chancery, or a Judge thereof, 
 with the assistance of a jury, and may make such order 
 respecting costs and other matters as seems reasonable and 
 just ; and the decree of the Court on the appeal shall be con- 
 clusive on the party appealing and on the commissioners. C, 
 S. U. C. c. 12, s. 16 ; see also Rev. Stat. c. 27, s. 19. 
 
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 REGISTRATION. 
 
 89. Certificates of Chancery proceedings for registration 
 may be signed by the registrar of the Court, or by the clerk 
 of Records and Writs, or by any other official authorized by 
 the Court to sign the same. 37 V. c. 8, s. 51. 
 
 90. The filing of a bill or the taking of a proceeding, in which 
 bill or proceeding any title or interest in land is brought in 
 question, shall not be deemed notice of the bill or proceeding to 
 any person not being a party thereto, until a certificate signed 
 by one of the officers in the preceding section mentioned, or 
 by a deputy registrar of the Court, has been registered in the 
 registry office of the county in which the land is situate, which 
 certificate may be in the following form : — 
 
 " I certify that in a suit or proceeding in Chancery between A. B., of 
 and CD. of some title or interest is called in 
 
 question in the following land (describing it)." 
 Dated at {stating date and place). 
 
 But no certificate shall be required to be registered in any suit 
 or proceeding for foreclosure or sale upon a registered mortgage. 
 C. S. U. C. c. 12, s. 64. ; 31 V. c. 20. s. 57. 
 
 When a certificate of Its pendens has been registered, and the bill is afterwards 
 dismissed, it is not necessary to obtain an order discharging the certificate from the 
 registry. The registration of the decree dismissing the bill is sufficient for <J1 pur- 
 poses, Dexter v. Cosford, 1 Ch. Ch. B. 22, 
 
COSTS. 
 
 [121] 
 
 m 
 
 91. Every decree affecting land may be registered in th«j 
 registry office of the county or registration division where the 
 land is situate, on a certificate signed by one ot the officers in 
 section eighty-nine mentioned, setting forth the substance and 
 effect of the decree, and the land affected thereby. 0. S. U. C. 
 c. 12, s. 65. 
 
 i Sections 92 to 96 relate to the service of proceedings, see Judicature Act, O. VI., 
 
 SECURITY FOR COSTS. 
 
 97. In addition to any cases in which a defendant in any suit 
 is now entitled to obtain security for costs from a plaintiff, 
 security for costs may be granted to the defendant or applicant 
 in any suit or proceeding in which it is made to appear satis- 
 factorily to the Court in which such suit or proceeding has 
 been instituted or taken, or to any Judge in Chambers, that the 
 plaintiff has brought a former suit or proceeding for the same 
 cause which is pending either in Ontario or in any other coun- 
 try, or that he has judgment or rule or order passed against 
 him in such suit or proceeding, with costs, and that such costs 
 have not been paid, and such Court or Judge may thereupon 
 make such order staying the proceedings until security be 
 given as to such Court or Judge shall seem meet. 29-30 
 v., c. 42. s. 1. 
 
 As to security for costs generally, see Judicature Act, O. L., r. 4. 
 
 The plai..viif was non-suited in an action against the sureties of A. Whilst this 
 suit was pending the same plaintiff sued A. :— Held, that A. was entitled to security 
 for costs, Elliot v. Pinkerton, 4 Pr. R. 8G. 
 
 The mere fact of a second action of ejectment being brought between the same 
 parties, and for the same land, is no reason for ordering security, if the costs of the 
 first action have been paid, and the second action brought in good faith, Armstrong 
 V. Montgomery, 5 Pr. R. 461. On an application for security for costs under R. 
 S. O., c. 51, s. 73, the fact of the costs of the former unsuccessful actions having 
 been paid is not a ground for refusing to make an order, Chambers v. Unger,6 Fr. 
 R. 101. To bring a case within this section (sec. 97) of the Statute, requiring 
 security to be given where another action for the same cause is pending, it must be 
 clearly shewn that the causes of action are identicallv the same, and not merely 
 growing out of the transaction, Dean v. Lamprey, 2 Cn. Ch. R. 202. 
 
 A former suit, brought by a married woman in her own name for redemption of 
 lands, in which she claimed an estate for life and in which the bill had been dis- 
 missed with costs, to be paid by the next friend of the plaintiff, was considered 
 substantially a decree against the plaintiff with costs, and proceedings were stayed 
 in a second suit until security should be given for the costs of that suit, Redman v. 
 Brownscombe, 9 U. C. L. J. N. S. 192 ; a stay of proceedings until the costs of the 
 former suit were paid, was refused, there being a distinction in this respect between 
 a suit by a married woman and a suit by a person sui Juris, Hid. 
 
 The plaintiff (the vendor) had sued at law to recover the purchase money due 
 under an agreement for the sale of lands, but had failed, and the costs of the action 
 were given against him ; the defendant (the vendee) issued &,fi.fa. goods to recover 
 the costs, which v/as returned nulla bona. Afterwards the vendor filed his bill in 
 Equity to enforce specific performance of the contract. On motion of the defendant 
 in the suit, proceedings in Equity were stayed till security for the costs at law 
 should be given, Follis v. Todd, 1 Ch. Ch. R. 288. 
 
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[122] 
 
 COUBT OP CHANCERY. 
 
 ;. ( S ;H 
 
 98. If any suit is brought in the Court of Chancery for any 
 cause of action for which any suit or action has been brought 
 and is pending between the same parties and their representa- 
 tives in any place or county out of Ontario, the Court or any 
 Judge thereof may make an order to stay all proceedings in the 
 Court of Chancery until satisfactory proof is offered to the 
 Court or Judge that the suit or action so brought in such 
 other place or country out of Ontario is determined or dis- 
 continued. 29-30 V. c. 42, s. 4. 
 
 [Sec. 99 provides for the trial of issues out of Chancery w hout feigned issues 
 at law, or by the Court or a Judge. Sec. 100 provides for witnesses being examined 
 
 viva voce.l 
 
 VESTING ORDERS. 
 
 ^ 
 
 is i 
 
 II =; 
 
 101. In every case in which the Court has authority to 
 order the execution of a deed, conveyance, transfer or assign- 
 ment of any property, real or personal, the Court may make 
 an order or a decree vesting such real or personal estate in 
 such person or persons, and in such manner, and for such 
 estates, as would be done by any such deed, conveyance, 
 assignment or transfer if executed ; and thereupon the order 
 or decree shall have the same effect both at Law and in Equity 
 as if the legal or other estate or interest in the prop?^rty had 
 been actually conveyed, by deed or otherwise, *' ts > same 
 estate or interest, to the person in whom the saj! ■■■ - j ordered 
 to be vested, or in the case of a chose in action, » a swch chose 
 in action had been actually assigned to such hi acjntioned 
 person. C. S. U. C. c. 12, s. 63. 
 
 The Court can make a vesting order in those cases only in which it has author- 
 ity to order the execution of a deed, conveyance, transfer or assignment of any 
 property. So where the plaintiff in a mortgage suit for sale has leave to bid, and 
 becumes the purthaser, the Court cannot make an order vesting the property in 
 him, inasmuch as he is the person who, in the event of a third person having bo- 
 come the purchaser, would have had to execute the conveyance ; the mortgagor or 
 his heirs not being proper parties to such a conveyance. Boss v, Steele, 1 Cn. Ch. 
 R. 94 ; re Williams, 21 L. J. N. S. Ch. 437 ; Bowen v. Fox, 1 Ch. Ch. R. 387. 
 
 A party purchasing under a decree of the Court, has a right to call for evidence, 
 shewing that persons whose interests wera intended to be disposed of, were alive at 
 the time of such sale, before accepting title by means of a vesting order, Slater v. 
 Fisken, 1 Ch. Ch. R. 1. 
 
 COSTS IN ABATED SUITS. 
 
 1018. Wherever any decree or order has been made for pay- 
 ment of costs in any suit, and the suit afterwards becomes 
 abated^ any person interested under the decree or order may 
 
COSTS. [123] 
 
 revive the suit, and thereupon prosecute and enforce the 
 decree or order, and so from time to time, so often as any 
 abatement happens. 40 V. c. 8. s. 19. 
 
 Before this statute the general rule was that there cuuld be no revivor for costa 
 after an abatement by death, Morgan v. Scudamore, 2 Ves. 313; Andrews v. 
 Lockwood, 15 Sim. 153; whether the abatement be caused by the death .of the 
 party to pa^ or the party to receive the costs, Ju])p v. Geering, 5 Mad. 375 ; nor is 
 this rule affected by the fact of the defendants being a corporate body, Umpelby v. 
 Waveney Valley Railway Co. 1 J. & H. 254 ; nor the fact that the bill specially 
 prays costs, /6td ; nor that the party who has died without paying costs was one 
 of several defendants, Bowyer v. Beamish, 2 J. & L. 238. 
 
 Where the party to wli a costs were payable died before taxation, the Court 
 (the suit not having been revived) refused with costs a motion that the Master 
 might proceed with the taxation, Robertson v. Southgate, 7 Hare, 109 ; but the 
 survivors of several defendants, against whom a bill has been dismissed with costs, 
 to be taxed, and paid by the plaintiffs, are entitled to proceed with the taxation of 
 their costs, notwithstanding the death of one of such defendants, without a revivor 
 of the suit, and although the surviving defendants and the deceased, in his life 
 time, had carried in a joint bill of costs for taxation, Hunter, v. Daniel, 7 Hare, 
 281 ; but see Malins v. Greenway, 7 Hare, 391. 
 
 The exceptions to this rule were : (1) Where the costs have been taxed, Lowten 
 V. Mayor of Colchester, 2 Mer. 113 ; overruling Glenham v. Stutwell, 1 Dick. 14 ; 
 or the taxation has been postponed on an undertaking that the postponement shall 
 be without prejudice. Tucker v. Wilkins, 7 Sim. 349. (2) Where some obligation 
 imposed on the party liable for costs remains to be executed, Bowyer v. Beamish, 
 2 J. &; L. 240 ; Johnson v. Peck, 2 Ves. Sen. 465. (3) Where the costs are order- 
 ed to be paid by the estate, Jenour v. Jenour, 10 Ves. 562 ; or out of a particular 
 fund, Kemp v. Mackrell, 2 Ves. Sen. 579. (4) Where the costs are ordered to be 
 paid by an officer of the Court, e.g., by a receiver, Betagh v, Concanon, LI. & G. 
 temp. Plunket, 365. 
 
 LOWER SCALE COSTS. 
 
 103. In any suit or proceeding, which, before the nineteenth 
 day of December, 1868, might have been brought, instituted or 
 carried on under the equity jurisdiction of the County Courts, 
 and which may now be brought or carried on in the Court of 
 Chancery, the stamps required, and the fees, costs and charges 
 payable in respect thereof, shall be on a scale bearing, as far as 
 practicable, the same proportion to the stamps, fees, costs and 
 charges payable in other suits or proceedings in the said Court 
 of Chancery, as the stamps, fees, costs and charges in actions 
 in County Courts bear to the stamps, fees, costs and charges in 
 actions in the Superior Courts of Common Law ; and it shall 
 be lawful for the Judges of the said Court of Chancery to pre- 
 pare a table of fees, costs and charges applicable to all such 
 proceedings. 32 V. c. 6, s. 4 (2). See Rev. Stat. c. 49, ss. 45 
 and 47. 
 
 [Sec. 104 related to the Suitor's Fee Fund and was repealed by 41 Vic. c. 8, s. 5. 
 Sec. 105 provided for the collection of certain fees by stamps.] 
 
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 [124] 
 
 ATTORNETS-AT-LAW. 
 
 An Act respecting Attorneys-at-Law. 
 
 (R. S. O., Gap. GXL.) 
 
 .'.I 
 
 [The aections of this Act, 1 to 30 inclusive, relate to the persons who may be 
 admitted and enrolled as attorneys and solicitors ; the service of articled clerks ; 
 the conditions of admission, examinations, fees, and annual certificates.] 
 
 31. Whenever any attorney or solicitor is struck off the Roll 
 of any of the said Courts, the Clerk of the Crown or Registrar 
 of such Court shall certify the same under his hand and the 
 seal of the Court to the Secretary of the Law Society, stating 
 whether such attorney or solicitor was stinick off at his own 
 request or otherwise, and the Secretary shall attach such certi- 
 ficate to the certified copy of the Roll on which the name of 
 such person stands, and shall, in the book to be by him kept 
 as aforesaid, make a note opposite the name of such person of 
 his having been struck off such Roll. C. S. U. C. c 35, s. 52. 
 
 The Courts referred to are : the Courts of Queen's Bench, Chancery and Com- 
 mon Pleas. 
 
 The proper proceeding against an attorney for mere non-pajnnent of money, 
 pursuant to a rule of Court, where there are no special circumstances shewing fraud 
 or dishonesty is by judgment and execution under C. S. U. C. c. 24, s. 15 (B. S. 0., 
 c. 67, 8. 12), and not by motion to strike him off the rolls, nor by attachment, re 
 Campbell, 32 U. C. B. 444. The Court will not attach an attorney for not pasring 
 over money leceived by him as an agent, and not in his professional character ; 
 but if from the circumstances, it appear that he is not trustworthy, he may be 
 struck off the roll, re HamUton O^Beilly, 1 U. C. R. 392 ; and see Taylor v. 
 
 A. & B., 1 L. J. N. S. 300. 
 
 As to proceedings against attorneys to compel payment of moneys, see in re 
 Harrison v. A. & B., 6 U. C. L. J., 91 ; re Carroll, 2 Ch. Ch. B. 323 ; re Walker, 
 IM. 324 ; re Toms & Moore, 3 Ch. Ch. B. 41. 
 
 The Court will not proceed summarily on a complaint of matters for which (if 
 the charge were true) the attorney might be indicted, on the ground that no one 
 should be compelled to criminate himself or incur a contempt, Stephens v. Hill, 10 
 M. &: W. 28 ; Anon., 12 W. B. 311 ; especially where the affidavits are contradictory, 
 re Patterson v. Miller, 1 U. C. B. 256; but recently the Court refused to recognize the 
 distmction, and ordered the solicitor to answer the matters, leaving him to plead 
 privilege bv way of evading the contempt if he thought fit. Anon., 17 Sol. Jour. Q. 
 
 B. 269. The jurisdiction of the Court is not limited to cases where the misconduct 
 is professional in character, but extends to cases where the solicitor's conduct is 
 such as to render him unfit to continue to be an officer of the Court, Bex v. 
 Southerton, 6 East 126, 143 ; re King, 8 Q. B. 129 ; re Hall, 4 W. B. 686 ; re Blake, 
 3 El. & El. 34. 
 
 The Beferee in Chambers has no power to exercise summary jurisdiction over 
 solicitors ; such jurisdiction can only be exercised on an applioattou to the Court, 
 re L. & M. solicitors, 6 Fr. B. 21. 
 
STBIKINO OFF ROLL. 
 
 In Ohancery the General Orders on this subject are as follows :— 
 
 [125] 
 
 H 
 
 Ord. 50. Where a solicitor is struck off the roll of solicitors, or prohibited from 
 practising as a solicitor, for malpractice or misconduct as a solicitor, oi- other suffici- 
 ent cause, the Registrar is fortnwith to certify under the seal of this Court, such 
 dismissal or prohibition, and the grounds thereof expressed in general terms, and 
 transmit such certificate to each of the Superior Courts of Ontario. (Gth Feb. 1854. ) 
 
 Ord. 61. This Court, on receipt of a similar certificate from the Court of Queen's 
 Bench, f ' Court of Common Fleas, of any attorney of either of the said Courts resp«c- 
 tiveljr, having been struck off the roll ot such Court, or prohibited from* practising 
 therein, will thereupon take proceedings for striking such person, being a solicitor of 
 this Court from the roll of solicitors ; or for prohibiting his practising therein, accord- 
 ing to the course and practice, and in like manner and under like circumstances, 
 olwerved in similar cases in the Superior Courts in England. (6th Feb., 1854.) 
 
 Ord. 52. Where a case appears, justifying or requiring by the practice hillierto, 
 an order against a solicitor that he be struck off the roll of solicitors, unless he shall 
 before a time therein limited, shew unto the Court good cause to the contrary, it 
 shall be ccmpetent for the Court in lieu thereof to issue an order calling upon the 
 ■olicitor to answer the matters appearing on affidavit or otherwise. 
 
 The Rules in the Common Law Courts are similar to 6. 0. Chy. 50, 51. See 
 Reg. Oen. as to Attorneys, Harr., C. L. P. A., p. 617. 
 
 A certificate of the clerk of the Court, on which an application is made to 
 have the Attorney struck off the roll in another Court, should shew the ground on 
 which he was struck off, and the application should be for a rule to shew cause, in 
 re Tremayne, 14 C. P. 257. 
 
 The Court will, sua sponie, where the circumstances appear to warrant it, take 
 notice of the conduct of its solicitors, and investigate matters in which their 
 acts seem open to suspicion, in re Toms, 3 Ch. Ch. R. 204 ; an attorney c^led 
 upon to answer affidavits charging him with untrue statements as to disburse- 
 ments for payments to and procuring money for witnesses, in re S., an Attor- 
 ney, 14 G. P. 323. Upon an application to compel attorneys to deliver a biU of pay- 
 ments and charges in relation to a certain lot of land, and to answer the affidavits 
 filed in support of the rule, it appeared that there was no retainer of the attomevs 
 or either of them, as such : — Held that the Court, therefore, could not grant the 
 first part of the rule, and that courts will not call upon attorneys to answer affi- 
 davits upon an application such as this, the course to be pursued being to dispose 
 of that which relates to the suit, and then, if the circumstances warrant it, to 
 move to strike the attorney off the roll, in re Keys and Smith & Henderson, 13 
 0. P. 262. 
 
 For the mode of proceeding before Order 52 was passed, see Goodwin v. Gos- 
 nell, 2 Coll. 467, 462 ; Wheatley v. Bastow, re Collins, 7 D. M. & 6. 261, 558 ; 
 Thomdike v. Hunt, 5 Jur. N. S. 879, 882 ; re Martm, 6 Beav. 337; re Chandler, 22 
 Beav. 253 ; re Hall, 2 Jur. N. S. 633. 
 
 ATTORNEYS' COSTS. 
 
 3)8. No suit at Law or in Equity shall be brought for the 
 recovery of fees, charges or disbursements, for business done by 
 any attorney or solicitor as such, until one month after a bill 
 thereof, subscribed with the proper hand of such attorney or 
 solicitor, his executor, administrator or assignee (or, in the case 
 of a partnership, by one of the partners, either with his own 
 name, or with the name or style of such partnership), has been 
 delivered to the party to be charged therewith, or sent by the 
 post to, or left for him at his counting-house, office of business, 
 dwelling-house, or last known place of abode, or been enclosed 
 in or accompanied by a letter subscribed in like manner, refer- 
 ring to such bill. C. S. U. C. c 35, s. 27. 
 
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[126] 
 
 ATTORNEYS-AT-LAW. 
 
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 The Act should be construed liberally for the client, Williams v. Griffiths, 10 
 M. & W. 125 ; Engleheart v. Moore, 15 M. & W. 548. 
 
 As to whether Courts of Equity have, independently of statute, jurisdiction to 
 order taxation of bills of costs, see ex parte Arrowsmith 13 Yes. 124 ; ex parte Lord 
 Cardross, 6 M. & W. 545 ; Cowdell v. Neale, 1 0. B. N. S. 332 ; re Forsyth, 34 
 Beav. 140 ; 13 W. R. 932. 
 
 In this Province "month" was held to me-xn a lunar, not a calendar month. 
 Berry v, Andrews, 3 O. S. 645 ; but in England it was held to mean a calendar 
 month, Ryall v. Regina, 12 Jur. 458. See now The Interpretation Act, R. S. O., 
 c. 1, s. 8, sub-8. 15. 
 
 The month is to be computed exclusive of the days on which the bill is delivered 
 and the action brought, Blunt v. Heslop, 8 Ad. & E. 577 ; re Morphy & Kerr, 
 2 Ch. Ch. R. 56 ; but see Berry v. Andrews supra. 
 
 Where three attorneys composing a firm commenced an action upon a bill of 
 costs, signed by only one of them, it was held insufficient, Sullivan v. Bridges, 
 
 5 U. C. R. 322. An assignee in bankruptcy is an assignee within the meaning of 
 the Act, re Walton, 4 K. & J. 78. 
 
 As to what constitutes delivery, see Welsh v. Silwell, 11 Jur. 471 ; Flower v. 
 Newton, 11 Jur. 875 ; Eggington v. Gumberlege, 11 Jur. 932 ; Blandy c. De Burgh, 
 
 6 C. B. 623; Gridley v. Austen, 16 Q. B. 504 ; Phipps v. Daubeny, 16 Q. B. 514; 
 Spier V. Bernard, 8 L. T. N. S. 396 ; in the case of a public officer. Champ v. 
 Stokes, 6 H. & N. 683 ; and in that of the committee of a public company, 
 Edwards v. Lawless, 5 Rail. Ca. 357 ; ,Mant v. Smith, 4 H. & N. 324. 
 Delivery to a duly authorized agent of the client is sufficient, re Bush, 8 Beav.. 66 ; 
 or to his servant, McGregor v. Keiley, 3 Exch. 794 ; but not to his solicitor, nor to 
 a friend or relation, re Abbott, 4 L. T. N. S. 576 ; Gridley v. Austen, 16 Q. B. 
 604, 511. Where the action was brought against the executors of the client, deliv- 
 ery to the client in his lifetime was considered enough, Reynolds v. Caswell, 4 
 Taunt, 193; Tate v. Hichins, 7 C. B. 875. 
 
 Service of the bill upon one of several clients acting in conjunction by the 
 same solicitor, but not copartners, is sufficient service on all, re Morphy v Kerr, 
 2 Ch. Ch. R. 82. A defendant is entitled to a copy of the bill according to the 
 statute, even though he may have admitted the amount to be due, Dempsey v. 
 Winstaiiley, 6 U. C. R. 317 ; the attorney must prove delivery of his bill, although 
 the defendant has suffered judgment by default, Ilidout v. Brown, 4 0. S. 74. 
 
 Non-deliverv of the bill is not a plea to the merits ; judgment for the defendant 
 is therefore no bar to a second action, Dempsey v. Winstanley, 6 U. C. R. 409; and 
 see Ecoles v. Johnson, 1 C. L. Ch. R. 03 ; Flower v, Newton, 11 Jur. 875 ; .Lane v. 
 Glenny, 7 Ad. & E. 83 ; Tate v. Hitchins, 7 C. B. 876. 
 
 The bill must be left, not shewn merely, Crowder v. Shee, 1 Camp. 437 ; 
 Phipps V. Daubenv, 16 Q. B. 614 ; and it may be sent by post, Roberts v. Lucas, 
 11 Exch. 41 ; Taylor v. HodgHon, 3 D. & L. 115. The bill, or some accompanying 
 document must specify the persons to be charged, Taylor v. Hodgson, 3 D. 
 ft L. 116 ; Roberts v. Lucas, 11 Exch. 41 ; Gridlev v. Austen, 16 Q. B. 504 ; 
 Champ V. Stokes, 6 H. & N. 683 ; the Coui-t in which the business was done, Lewis 
 V. Primrose, 6 Q. B. 266 ; Dimes v. Wright, 8 C. B. 831 ; the name of the cause, 
 Keene v. Ward, 13 Q. B. 516 ; and the particular items charged for. Drew v. Clif- 
 ford, 2 Car. & P., 69 : re Smith, 4 Beav. 309 ; re Pender, 10 Beav. 390 ; Stanton & 
 Warren v. McLean, 9 U. C. L. J. 301. 
 
 It is sufficient, as a general rule, if the bill gives such information as will en- 
 able the client to obtain advice as to taxation, Frowd v. Stillard, 4 Car. & P. 61 ; 
 Sargent v. Gannon, 7 C. B. 742 ; Cook v. Gillard, 1 El. & Bl. 26 ; Haign v. Oussey, 
 
 7 El. & BL 578. 
 
 An attorney may set off a bill before delivery, Lester v. Lazarus, 2 C. M. & R. 
 665 ; or prove m btmkruptcy, ex parte Prideaux, 1 Gl. & Jam. 28 ; ex parte Steele, 
 16 Yes. 161 ; or sue on a promissory note or other collateral agreement, Jeffreys v. 
 Evans, 14 M. & W. 210 ^homas v. Cross, 13 W. R. 166. See, in the latter case, 
 comments on Waugh v. Waddell, 16 Beav. 621. 
 
 The summary jurisdiction does not exclude the right of a client to file a bill 
 against his solicitor for an account, Morgan v. Higgins, 5 Jur. N. S. 236 ; O'Brien 
 V. Lewis, 9 Jur. N. S. 321 ; or to enforce an agreement for delivery by petition, re 
 Bailey, 34 Beav. 392. 
 
TAXATION. 
 
 [127] 
 
 After taxation, an action >iy vue solicitor is a contempt, re Campbell, 3 D. M. & 
 0.685. 
 
 An attorney mav be ordered to deliver his bill, though it has been fully settled, 
 and to give credit tnerewith for all moneys received, in re Francis v, l^oulton, 6 U. 
 C. L. J. 20 ; and although the services were not in whole or in part for business 
 done in Court, re O'Donohoe & WarmoU, 4 Pr. R. 266. 
 
 33. Upon the application of the party chargeable by such 
 bill within such month any of the Superior Courts of Law or 
 Equity or any Judge thereof, or any Judge of a County Court 
 shall, without money being brought into Court, refer the bill 
 and the demand thereon to be taxed by the proper oflBcer of 
 any of the Courts in the County in which any of the business 
 charged for in such bill was done, and the Court or Judge 
 making such reference shall restrain the bringing any suit for 
 such demand pending the reference. 34 V. c. 13, s. 13. 
 
 The common order to tax may be obtained on precipe ; it is not necessary to 
 apply in Chambers, re Daniel, 1 Ch. Ch. R. 224 ; but if the bill has been de- 
 livered more than a month the client must obtain an order in Chambers, re Boult- 
 bee, 2 Ch. Ch. R. AS ; if a special order is required notice must be given, re 
 Atkinson V. Pegley, 1 Ch. Ch. R. 187. An order to tax will not be grantea ex jjarte 
 to the solicitor where there appear to be any f atts in dispute between him and the 
 client, in re Fitch, 2 Ch. Ch. R. 288; the application must be made in the matter of 
 the solicitor, Duggan v. Cotton, 3 U. C. L. J. 16. 
 
 As to the party chargeable see notes to Sec. 43. 
 
 A party in contempt may apply for taxation, Newton v. Ricketts, 11 Beav. 67. 
 A married woman who has separate estate, which she has bv agreement made 
 liable, is a party chargeable within the Act, Waugh v, Waddell, 16 Bsav. 621 ; 
 Murray v. Barlee, 3 M. & K. 209 : but see re Pugh, 17 Beav. 336 ; so is the next 
 friend of an infant, re Fluker, 20 Beav. 143 ; or ttie executors of the party origin- 
 ally liable, Jefferson v. Warrington, 7 M. & W. 137 ; or his assignees m bank- 
 ruptcy, Clarkson v. Parker, 7 Dowl. 87. A married woman must apply by her 
 next friend, in re Waugh, 16 Beav. 608. See notes to Judic. Act, O. All., 
 
 r. 9. 
 
 Where several parties are jointly charg^eable, they should concur in the applica- 
 tion, re Lewin, 16 Beav. 608 ; re Perkins, 8 Beav. 241 ; re Mobbs, 8 Beav. 499 ; 
 and an order obtained by one of them, on an allegation that he alone employed the 
 solicitor, will be discharged as irregular, re Beecher, Barker and Street, 2 Ch. Ch. 
 R. 215 ; Hobby v. Pritchard, 2 M. & W. 124. If one of the parties liable refuses to 
 concur, the order may be obtained by the other. Hazard v. Lane, 3 Mer. 285; 
 Lockhart v. Hardy, 4 Beav. 224 ; the one refusing to concur should be served with 
 the petition, re Hair, 10 Beav. 187 ; 11 Jur. 139 ; but the order cannot be made 
 after action has been brought against the two, re Chilcote, 1 Beav. 421. 
 
 As to security for costs being required from the party applyi: 
 
 11 Jur. 1095 ; re Pasmore, 1 Beav. 94 ; re Foley, 11 Beav. 466 ; 
 
 12 Beav. 497 
 
 ., see re Dolman, 
 arrow v. Wilson, 
 
 The fact that an action is pending for the amount of a bill, does not give the 
 Common Law Judge jurisdiction to tax the bill. Bush v. Sayer, 7 M. & 6. 1027 ; 
 Cowdell V. Neale, 1 C. B. N. S. 332. 
 
 An order of course, though right on the merits, will be discharged if obtained in 
 a case where a special application was necessary, Harris v. Start, 4 M. & C. 261 ; 
 Grove v. Sansom, 1 Beav. 297 ; Gegg v. Tayler, 1 Beav. 123 ; as to the cojts of a 
 special application, where an ex parte application would have been sufficient ; see 
 re Cattlin, 8 Beav. 121 ; re Bracey, 8 Beav. 338 ; re Bignold, 9 Beav. 269 ; re Adam- 
 son, 18 Beav. 460 ; re Atkinson, 26 Beav. 151 : re Lett, 31 Beav. 488. 
 
 A special application is necessary where the application is to tax part only of 
 the bill claimed, re Byroh, 8 Beav. 124 ; re Dalby, 8 Beav. 469 ; re Wavell, 22 Beav. 
 634 ; re Yetts, 33 Beav. 412 ; Stokes v. Trumper, 2 K. & J. 232 ; but 8«e re Hintoo, 
 
 ■■if ^ ' 
 
 ^1 
 .11 
 
 ■I % 
 
 III; 
 
[128] 
 
 ATTORNEYS-AT-LAW. 
 
 .'I III 
 
 ?■• :„^ 
 
 18 Beav. 192 ; re Fluker, 20 Beav. 143 ; or where it U made by iome only of several 
 parties jointly liable, re Ilderton. S^t Beav. 2U1 ; or where there is a special agree- 
 ment as to retainer, re Thurgoua, 19 Beav. 641 ; or a special agreement as to the 
 costs, re Winterbotham, 16 Beav. 80 ; or to give the solicitor a lien, re Moss, 17 
 Beav. 69 ; and see re Ransom, 18 Beav. 220 ; re Fisher, 18 Beav. 183. 
 
 A special agreement respecting f>art of the costs, unless it goes to the whole bill, 
 is not a bar to an order for taxation, though formerly held to be so, re Eyre, 10 
 Beav. 569 ; 2 Phil. 307 ; re Forsyth, 34 Beav. 140 ; re Thompson, 14 L. T. N. S. (I ; 
 but if the fact of the agreement is suppressed, the order will be discharged, re 
 Carven, 8 Beav. 436 ; re Holland, 19 Beav. 314 ; re Ingle, 21 Beav. 275. An agree- 
 ment to charge a fixed sum in lieu of costs hereafter to be incurred is void, Philby 
 V. Hazle, 7 Jur. N. S. 125 ; Pince v. Beattie, 11 W, 11. 979 ; re Newman. 30 Beav. 
 19tS ; but as to an agreement to pay a solicitor a fixed salary, see Qalloway v. Cor- 
 poration of London, 4 L. R. £q. 90 ; and see Jarvis v, Great Western Railway 
 Co., 8 C. P. 280. 
 
 The solicitor may waive an irregularity in obtaining the order, re Hair, 11 Beav. 
 96 : re Bevan, 12 W. R. 196 : re Bartrum, 12 W. R. 6G0 ; re Field, 16 Beav. 593 ; 
 re Wavell, 22 Beav. 634. 
 
 A bill must be delivered before it will be referred for taxation, therefore at 
 Common Law the first application was for delivery, re Eccles, 6 U. C. L. J. 59 ; 
 for a Judge could not by the same order direct the delivery and a reference to tax- 
 ation, re Boomer, 16 C. P. 163. In Chancery i\> has always been the practice, when 
 necessary, to embrace in the same order, the order for delivery and taxation. 
 
 A bill for conveyancing only cannot be referred, but it may where it consists 
 whollv or in part of business done in Court, re Lemon & Peterson, 8 U. C. L. J. 
 185 ; but see re O'Donohoe fr Warmoll, 4 Pr. R. 266, where attorneys were ordered 
 to deliver a bill of costs for business done by them as such, though the services 
 performed were not for businees done in Court ; and see re Eccles, 6 U. C. L. J. 69. 
 
 The practice as to the manner in which the Master will tax solicitor's costs 
 for professional services rendered in the sale of lands and collection and trans- 
 mission of purchase money, was defined in re Richardson, 3 Ch. Ch. R. 144. 
 
 The mortgagees of land having brought ejectment and sold under the power of 
 sale, their solicitor sent the surplus purchase money to the mortgagor, accompanied 
 by a statement of the amount due, in which one item was for " solicitor's costs, 
 $143." The particulars being asked for, two separate bills were rendered, one of 
 the ejectment, the other of the sale : — Held, that the two bills might be considered 
 as particulars of the one item in the previous statement, and that the bill of costs 
 in the suit drew with it the other bill, which would not alone have been subject to 
 taxation, and both bills were therefore referred, ex parte Glass, in re Macdonald, 
 3 Pr. R. 138. See now as to taxation of the costs of a mortgagee exercising a power 
 of sale, 42 Vic. c. 20, s. 11 O. ; Ferguson v. English and Scottish Investment Com- 
 pany, 8 Pr. R. 404. Where a solicitor has funds of a client in his possession, or has 
 papers over which he claims a lien, this Court will order delivery and taxation of 
 his bills and payment of any balance, though the services for which he claims have 
 been wholly in County Court proceedings, re Prince, 3 Ch. Ch. R. 282 ; but where 
 a client applied for taxation of the costs in two suits, one in Chancery and the 
 other in a County Court, denying the retainer in the Chancery suit, but admitting 
 it in the other, and the solicitor made no claim for costs in the suit in Chancery, it 
 was held that the Court of Chancery could not order a taxation between the client 
 and solicitor, in re Malcolm C. Cameron, 1 Ch. Ch. R. 356. 
 
 The bill is one entire matter, and in taxation the client cannot separate certain 
 charges for taxation, and ask that they alone be referred, in re Davy, 1 U. G. L. 
 J. N. S. 213. 
 
 In referring to taxation, there is no authority here, without consent, to reserve 
 the right to dispute the retair.er ; the right to do so in England exists under 6 & 7 
 Vic, c. 73, which differs fim section 49 of the statute here, in re Totten, 27 Q. 
 B. 449 ; but where, on t.n application by a solicitor for a taxation, the client dis- 
 puted the retainer as t" 1<he whole bill, and also set up the Statute of Frauds, it was 
 held that the Court could refer these defences to the Master, re Bacon, 3 Ch. Ch. 
 R. 79 ; and see re Lewis, 9 U. C, L. J. 81 ; re Toms, 3 Ch. Ch. R. 204. Where a 
 solicitor has no written retainer, and it is disputed and the evidence is conflicting, 
 weight is given to the denial of the client as against the solicitor, in re Eccles v, 
 CarroU, 1 Ch. Ch. R. 263. 
 
TAXATION. 
 
 [129] 
 
 34. In case no application is made within the month, then 
 the Court or Ju«lge upon the application of either party may 
 order a reference with such directions and conditions as he 
 may deem proper; and may u))on such terms as may be thought 
 just restrain any suit for such demand pending the reference. 
 C. S. U. C, c. 35. s. 29. 
 
 As to the word " month," see notes to sec. H2. Where i,he bill has been delivered 
 more than a month, the client must apply for taxation in Chambers; otherwise the 
 order can be obtained on praecipe, re lionltbee, 2 Ch. Ch. R. 58 ; bill with exorbitant 
 charges ordered for taxation, although paid, and several months had elapsed since 
 its delivery, Doe & Fraser v, Eaglesum, 5 O. H. 77 ; and see notes to sec. 47. 
 
 As to the particulars which every order for taxation is to be read as containing, 
 see Judicature Act, O. L., r. 16; and notes to sec. 37. 
 
 35. No such reference shall be directed upon application 
 made by the party chargeable with such bill after a verdict 
 has been obtained or a writ of inquiry executed, or after 
 twelve mouths from the time such bill was delivered, sent or 
 left as aforesaid, except under special circumstances, to be 
 proved to the satisfaction of the Court or Judge to whom the 
 application for the reference is made. C. S. U. C, c. 35, s. 30. 
 
 The lapse of less than twelve months may be an objection to granting the appli- 
 cation, re Bayley, 18 Beav. 415; re Pugh, 32 Beav. 173; 11 W. R. 762; re Browne, 
 ID. M. & G. 322. 
 
 A dispute and correspondence as to alleged omissions in the bill, held sufficient 
 apology for the lateness of the application, re Bagshawe, 2 D. & Sm. 205; and 
 where the relation of solicitor and client continued until within a vear before the 
 application was made, and the last account had been delivered within the year, it 
 was held a material circumstance in accounting for the delay, re Nicholson, 3 D. F. 
 & J. 93, 100 ; but the solicitor's possession of the papers in the suit waa not, re Gedye, 
 15 Beav. 254. 
 
 For cases where lapse of time and laches have been a bar to taxation, see r« Vines, 
 2 D. M. & G. 842; Blagrave v. Routh, 8 D. M. & G. 620. 
 
 To entitle a client to taxation after twelve months, he must shew either " pres- 
 sure accompanied by some overcharge," or "gross overcharge amounting to fraud," 
 re Strother, 3 K. & J. 518 ; re McCay, 15 L. T. N. S. 101 : re Cameron, 2 Ch. Ch. 
 R. 311. 
 
 As to what circumstances constitute such pressure or fraudulent overcharge, see 
 notes to sec. 47. 
 
 The Court, on ordering taxation after the twelve months, will, if necessary, 
 restrict the taxation within certain limits, re Nicholson, 3 D. F. & J. 93. 
 
 As to the parties chargeable, see notes to sec. 43. 
 
 36. In case either party to any such reference, having due 
 notice, refuses or neglects to attend the taxation, the officer to 
 whom the reference is made, may tax the bill ex parte ; and 
 in case the reference is made upon the application of either 
 party, and the party chargeable with the bill attends the tax- 
 ation, the costs of the reference shall be paid according to the 
 event of the taxation, except that if a sixth part be taxed off, 
 the costs shall be paid by the party by whom or on whose be- 
 
■) \- 
 
 I ;!: 
 
 Ill 
 
 !l I: 
 
 [130] 
 
 ATTORNETS-AT-LAW. 
 
 half such bill was delivered; and if less than a sixth part be 
 taxed off, then by the party chargeable with such bill, if he 
 applied for or attended the taxation. C. S. U. C. c. 35, s 31. 
 
 The Court has no discretion to allow the costs of taxation, ,vhen the party 
 chargeable neither obtains the order, nor attends under an order obtained by the 
 solicitor, re Kerr, 2 Ch. Ch. R. 47. 
 
 Only those payments are allowed on taxation which are made by the solicitor in 
 his professional capacity, re Remnant, 11 Beav. 603 ; cash payments made by the 
 solicitor in proceedings where he was not profesxionally concerned, are not allowed 
 to be included. Hemming v. Wilton, 4 Car. & P. 318 ; re Lees, 5 Beav. 410 ; Prothero 
 V. Thomas, 6 Taunt. 195. 
 
 Where a solicitor has been retained for a particular business, his bill of costs for 
 carrying it through constitutes one bill, Stokes v. Trumper, 2 K. & J. 232 ; re Peach, 
 2 Dow. & L. 33. 
 
 Aft^r the bill has been referred for taxation no alteration can be made in it, re 
 Wells, 8 Beav. 416 ; re Catlin, 18 Beav. .508 ; Davis v. Earl of Dysart, 21 Beav. 124 ; 
 8 D. ]VI. & G. 33 ; in re Davy, 1 L. J. N. S. 213 ; except by consent, or on special 
 application for leave to amend, re Andrews, 17 Beav. 510, 514. This leave has been 
 given to amend, by inserting omitted items, and increasing under charges, re Craw- 
 ford & Crombie, 2 Ch. Ch. R. 1'3 ; but not to decrease over charges, re Whalley, 20 
 Beav. 576 ; nor to withdraw items improperly inserted, re Carven, 8 Beav. 436 ; re 
 Jones, 8 Beav. 479 ; re Blakesly, 32 Beav. 379 ; and see re B. & S. 6 Pr. R. 18. A 
 solicitor having delivered his bill, is bound by it so far, that he cannot substitute an- 
 other bill for it, even before notice of an order to tax is served on him, without pay- 
 ing all the costs incurred by the client up to the date of obtaining such order, re 
 Chambers, 34 Beav. 177. Solicitors delivereil bills of costs indorsing on each, "In 
 the event of taxation, we reserve to ourselves the right of delivering another and more 
 complete bill :" — Held, an absolute delivery, in rs Spencer & McDonald, 19 Gr. 467. 
 
 The rule as to one sixth is imperative in an ordinary reference to taxation, re 
 Woollett, 12 M. & W. .504 ; but where the reference is special, the costs are in the 
 discretion of the Judge, Toghill v. Grant, 6 Beav. 348 ; Higgins v. Woolcot, 5 B. 
 & C. 760 ; and see May v. Biggenden, 24 Beav. 207 ; re Hair, 11 Beav. 96. Where 
 more than a sixth is taken off, the assignees of an insolvent, or bankrupt solicitor 
 are personally liable for the costs of taxation, re Peer'., 21 Beav. 520 ; re Peile, 25 
 Beav. 561 ; and under similar circumstances, the insolvent was, notwithstanding 
 ■his discharge, held personally liable, Whalley v. Williamson, 6 Man. & Gr. 269. 
 Where a bill was ordered to be taxed (questions as to liability being reserved,) 
 and less than a sixth was struck off, it was held that, whatever might be the result 
 of the questions reserved, the client must pay the cost of taxation, re Shaw, 20 L. 
 J. Q B. 280. Where the Master disallows some items and adds others, the bill is 
 to be considered as increased by the items allowed, and then reduced by those 
 disallowed, re Hartley, 2 Jur. N. S. 448 ; and see re Clark, 13 Beav. 173 ; 1 D. M. 
 & G. 43. 
 
 Items included, which are chargeable against another person, must be reckoned 
 in as against the solicitor, re Colquhoun 1 Sm. & G. app. I ; 5 D. M. & G. 35. The 
 Master is not to take into consideration, in determining whether one-sixth has been 
 taxed off the bill, items which are not properly taxable items, such as Sheriff's fees 
 and witness fees, etc., not actually to be repaid to the attorney nor a part of his 
 claim, in re Davy, 2 U. C. L. J. N. S. 70 ; where one item had been abandoned by an 
 attorney after a summons taken out for taxation, but before actual taxation, and one- 
 sixth was afterwards struck off the whole bill, including such item, the attorney 
 was ordered to pay the costs of taxation, re Davy, 5 Pr. R. 55, 
 
 Where a solicitor offered to make a reduction in his bill, the Court held the 
 Master should not charge him with the costs of taxation, unless the bill has been 
 reduced one-sixth independently of the voluntary deduction, re Freeman, Craigie 
 & Proudfoot, 1 Ch. Ch. R. 102.' 
 
 For the manner in which costs for professional services rendered in the sale of 
 lands and collection and transmission of the purchase money, see re Richardson, 3 
 Ch. Ch. R. 144. If charges are unuaual or exceptional, the solicitor has to make out 
 a very clear case to have them allowed, re A. B., 8 IT. C. L. J. N. S. 21. If the usual 
 charges are made, but the client complains of negligence or unskilfulness not ap- 
 parent on the face of the bill, then the onus rests ou him to establish his case, Hid. 
 
' V '"■?fr 
 
 TAXATION. 
 
 [131] 
 
 h part be 
 )ill, if he 
 35, s 31. 
 
 m the party 
 lined by the 
 
 e solicitor in 
 made by the 
 ! not allowed 
 10 ; Prothero 
 
 11 of costs for 
 32 ; re Peach, 
 
 nade in it, re 
 21 Beav, 124 ; 
 or on special 
 )ave has been 
 ges, re Craw- 
 i Whalley, 20 
 Beav. 43(j ; re 
 r. R. 18. A 
 substitute an- 
 without pay- 
 such order, re 
 on each, "In 
 ther and more 
 id, 19 Gr. 467. 
 
 taxation, re 
 >sts are in the 
 Woolcot, 5 B. 
 f. 96. Where 
 irupt solicitor 
 ) ; re Peile, 25 
 twithstanding 
 m. & Gr. 269. 
 sing reserved,) 
 it be the result 
 'e Shaw, 20 L. 
 lers, the bill is 
 uced by those 
 
 173 ; 1 D. M. 
 
 ist be reckoned 
 &G.35. The 
 -sixth has been 
 asSherifif'sfees 
 r a part of his 
 jandoned by an 
 cation, and one- 
 1, the attorney 
 
 Court held the 
 
 1 bill has been 
 eeman, Graigie 
 
 i in the sale of 
 Richardson, 3 
 has to make out 
 1. If the usual 
 Fulness not ap- 
 h his case, Hid. 
 
 37. Every order for such reference shall direct the officer to 
 whom the reference is made to tax the costs of the reference, and 
 to certify what, upon the reference, he finds to be due to or 
 from either party in respect of such bill and of the costs of 
 reference, if payable. C. S. U. C. c. 35, s. 32. 
 
 The Judicature Act, O. L, r. 16, provides as follows : — 
 
 R. 16. Where a solicitor's bill of fees, charges and disbursements as delivered to 
 a client or other person is referred to the Master to be taxed, the solicitor is to give 
 credit for all sums of money by him received from or on account of the said client, 
 and is to refund what, if anything, he may on such taxation appear to have been 
 overpaid. 
 
 (a) The Master is to tax the costs of the reference and certify what shall be 
 iCnnd due to or from either party in respect of the bill and demand and of the 
 cost of the reference, to be paid according to the event of the taxation pursuant to 
 the statute. < 
 
 (6) The solicitor is not to commence or prosecute any action or suit touching the 
 demand pending the reference without leave of the Court or a Judge. 
 
 (c) Upon payment by the said client or other person of what (if anything) may 
 appear to be due to the solicitor, the solicitor (if required) is to deliver to the said 
 client or other person, or as he may direct, all deeds, books, papers, and writings 
 in the said solicitor's possession, custody, or power, belonging tr> the said client. 
 
 {(l) Order shall be read as if it contained the above particulars, and shall not 
 set forth the same, but may contain any variations therefrom, and any other 
 directions which the Court or Judge shall see fit to make. 
 
 38. F :h officer may certify specially any circumstances 
 relating to such bill or taxation, and the Court or Judge m&y 
 thereupon make such order as may be deemed right respecting 
 the payment of the costs of the taxation. C. S. U. C. c. 35, s. 
 33. 
 
 39. In case such reference is made when the same is not 
 authorized, except under special circumstances as hereinbefore 
 provided, the Court or Judge, in making the same, may give any 
 special directions relative to the costs of the reference. C. S. 
 U. C. c. 35. s. 34. 
 
 40. Where no bill has been delivered, sent or left as afore- 
 said, and where such bill if delivered, sent or left, might have 
 been referred as aforesaid, any such Court or Judge may order 
 the delivery of a bill, and may also oider the delivery up of 
 deeds or papers in the possession, custody or power of the 
 attorney or solicitor, his assignee or representatives, in the 
 same manner as has heretofore been done in cases where any 
 such business had been transacted in the Court in which such 
 order was made. C. S. U. C. c. 35, s. 35. 
 
 An attorney mav bu ordered to deliver his bill though it has been fully settled, 
 and to give credit therewith for all moneys received, in re Francis v. Boulton. 6 U. 
 C. L. J. 20 ; Qutere, can attorneys properly be made to pay the costs of an order for 
 delivery of bills of costs, in re Lemon & Peterson, 1 L. J. N. S. 19. At Common 
 
 i ^ 
 
 ,i«i 
 
 :| 7 
 
Sitf: 
 
 Ml 
 
 [132] 
 
 ATTORNEYS-AT-LAW. 
 
 Law a Judge could not by the same order direct the delivery of a bill, and a 
 reference of it to taxation when delivered, re Boomer, 16 C. P. 103 ; but in Chan- 
 cery such an order has always been made when necessary. 
 
 Orders under this section may be enforced by attachment, re Bowen, 11 W. R. 
 607 ; no action at law lies for disobedience to the order, Dent v. Basham, 9 Ex. 
 469. Where the order was not obeyed, and the solicitor swore that he had no papers 
 from which he could make out his bill, the Court refused to commit him for non- 
 delivery, re Ker, 12 Beav. 390. 
 
 The Court will before the completion of the taxation, order the delivery of 
 papers to the client, either upon payment into Court of the amount claimed, or 
 where it appears from the solicitor's own account that a balance is due from him to 
 the client, re Bevan, 33 Beav. 439 ; as to inserting a direction for delivery of 
 papers in the common order for taxation, see re Pender, 8 Beav. 299 ; re Teague, 11 
 Beav. 318. 
 
 Where a solicitor voluntarily withdraws he must deliver the client's papers to 
 the new solicitor, but where he is discharged by the client, he is not disentitled to 
 his lien, even though the reason is that he is in embarrassed circumstances, re 
 Smith, 9 W. R. 396 ; re Williams, 28 Beav. 465 ; 3 D, F. & J. 104. 
 
 The client is entitled to the convenient use of his papers in pending business, 
 even where the lien exists, Rawlinson v. Moss, 9 W. R. 733 ; and where a solicitor 
 refused to carry on a suit unless money was advanced, or to deliver up the papers 
 until his costs were paid, the Court on the client's application, ordered a taxation, 
 and that the papers should be delivered to the new solicitor on his undertaking to 
 hold them subject to the former solicitor's lien, if any, and to re-deliver them within 
 ten days after he had ceased to have occasion for them for the purposes of the 
 suit. Ley v. Brown, 1 Ch. Ch. R. 179 ; but see Moodie v. Thomas, 1 Ch. Ch. R. 
 19 ; and as to the right of an attorney to detr.in books of account belonging to 
 his client, on an alleged claim, McLean v, Maitland, 5 U. C. L. J. 279. 
 
 41. In proving a compliance with this Act it shall not he 
 necessary in the first instance to prove the contents of the bill 
 delivered, sent or left, but it shall be sufficient to pi'ove that a 
 bill of fees, charges or disbursements subscribed in the manner 
 aforesaid, or enclosed in or accompanied by such letter as 
 aforesaid, was delivered, sent or left in manner aforesaid ; but 
 the other party may shew that the bill so delivered, sent or 
 left, was not such a bill as constituted a bona fide compliance 
 with this Act. C. S. U. C. c. 35, s. 36. 
 
 43. Any Judge of the Superior Courts of Law or Equity 
 or a County Judge, on proof to his satisfaction that there is 
 probable cause for believing that the party chargeable is about 
 to quit Ontario, may authorize an attorney or solicitor to 
 commence an action for the recovery of his fees, charges or 
 disbursements against the party chargeable therewith, although 
 one month has not expired since the delivery of a bill as afore- 
 said. C. S. U. C. c. 35, s. 37. 
 
 43. When any person not being chargeable as iu6 principal 
 party is liable to pay or has paid any bill either to the 
 attorney or solicitor, his assignee, or representative, or to the 
 principal party entitled thereto, the party so paying, his as- 
 signee or representative, may make the like application for a 
 
np' 
 
 TAXATION. 
 
 [133] 
 
 resaid ; but 
 
 reference thereof to taxation and in like manner as the party 
 chargeable therewith might himself have made, and the same 
 proceedings shall be had thereupon, as if such application had 
 been made by the party so chargeable. C. S. U. C. c. 35, s. 38. 
 
 A mere volunteer, under no previous liability, undertaking to pay a solicitor's 
 bill, does not acquire a right to tax it, re Becke, 5 Beav. 40C : but where a suit was 
 compromised, plaintiff agreeing to pay defendant's costs, plaintiff was held entitled 
 to an order for taxation of the bill, re Hartley, 30 Beav. <520. 
 
 The bill of a mortgagee's solicitor for business done in regard to the mortgaged 
 estate, may be taxed by the mortgagor, re Lees, 5 Beav. 410; re Carew, <S Beav. 
 150 ; re Wells, 8 Beav. 416 ; or by a subsequent incumbrancer, re Taylor, 18 Beav. 
 165 ; re Jessop, 32 Beav. 406. 
 
 The mortgagees of land having brought ejectment, and sold under the power of 
 sale, their solicitor sent the surplus purchase money to the mortgagor, accompanied 
 by a statement of the amount due, in which one item was for ' ' solicitor's costs, $143. " 
 ■fhe particulars being asked for, he rendered two separate bills, one of the ejectment, 
 the other of the sale : — Held, that the mortgagor was clearly a person entitled to apply 
 for taxation within this section of the Act, ex parte Glass, in re Macdonald, 3 Pr. R. 138. 
 An assignee in insolvency employed a firm of attorneys to perform certain services 
 in connection with the estate, subsequently he resigned the position and gave these 
 attorneys the moneys of the estate remaining in his hands, with instructions to pay 
 their own costs first, and then to hand the balance to the new assignee. This they 
 did and rendered their bill of costs : — Held, that the estate of the insolvent was 
 within the meaning of this section, the "party liable to pay," though " not charge- 
 able as a principal," and the second assignee was entitled to have the bill taxed, in 
 re A. & B., 6 Pr. 11. 68. But after payment l)y the mortgagee oi tiivj solicitor's 
 costs the mortgagor cannot obtain an order for taxation ; his only remedy is by a 
 bill for an account, re McDonald, McDonald & Marsh, 8 P. K. 88; and see 42 
 Vic. c. 20, s. 11, O ; Ferguson v. English and Scottish Investment Co. , 8 Pr. R. 404. 
 
 Where, on a settlement of several suits between the parties, it was agreed that 
 defendant should pay, among other things, all the costs of every kind, including re- 
 tainers, for which the plaintiff was liable to his attorney, it was held that defend- 
 ant, though he had not paid the bills, was entitled to have them referred to taxation 
 on the usual terms, in re Greenwood, 10 U. C L. J. 131. 
 
 The taxation at the instance of the third party must be as between the solicitor 
 and his client, not as bettveen the solicitor and the third party, re Wells,8 Beav. 
 416 ; re Jones, 8 Beav. 479 ; re Fyscm, i» Beav. 117 ; re Barrow, 17 Beav. 547 ; and 
 if the client is not entitled to tax the bill, as if it has been paid without pressure, 
 &c,, the third party cannot tax it ; but if an excessive amount has been paid he 
 must file a bill against the client who paid the bill to reduce his liability, re Massey, 
 34 Beav. 463 ; and see re Forsyth, 34 Beav. 140 ; on appeal, 13 W. R. 932. 
 
 44. In case such application is made when, under the pro- 
 visions hereinbefore contained a reference is not authorized to 
 be made except under special circumstances, the Court or 
 Judge to whom the application is made, may take into con- 
 sideration any additional special circumstances applicable to 
 the person making it, although such circumstances might not 
 be applicable to the party chargeable with the bill, if he was 
 the party making the application. 0. S. U. C. c. 35, s. 39. 
 
 As to the meaning and efifect of this section, see re Vardy, 20 L. J. Ch. 325. 
 
 45. For the purpose of any such reference upon the appli- 
 cation of the person not being the party chargeable, or of a 
 party interested as aforesaid, such Court or Judge may order 
 
 I 
 
 I 
 
 
:!S- 
 
 i! -!l 
 
 [134] ATTORNEYS- AT-L AW. 
 
 the attorney or solicitor, his assignee or representative, to de- 
 liver to the party making the application a copy of the bill, 
 upon payment of the costs of the copy. C. S. U. C. c. 35, s. 40. 
 
 46. No bill previously taxed shall be again referred, unless 
 under the special circumstances of the case the Court or Judge 
 to whom the application is made thinks fit to direct a retaxa- 
 tion thereof. C. S. U. C. c. 35, s. 41. 
 
 A retaxation will not be ordered unless improper charges are specified and es- 
 tablished, Eastman v. Eastman, 2 Ch. Ch. £,. 325 ; and see Cameron v. Campbell, 
 1 Pr. R. 170. 
 
 47. The payment of any such bill as aforesaid, shall in 
 no case preclude the Court or Judge to whom application may 
 be made from referring such bill for taxation, if the applica- 
 tion be made within twelve months after payment, and if the 
 special circumstances of the case in the opinion of such Court 
 or Judge appear to require the same, upon such terms and sub- 
 ject to such directions as to the Court or Judge seem right. 
 C. S. U. C. c. 55, s. 42. 
 
 The giving of security is for the purpose of this section equivalent to payment, 
 ex parte Turner, 5 D. M. & G. 540 ; Sayer v. Wagstaff , 5 Beav. 415 ; re Currie, 
 9 Beav. 602 ; re Harper, 10 Beav. 284 ; re Fairbanks, 1 Ch. Ch. R. 222 ; but 
 retainer by the Solicitor is not, re Steele, 20 L. J. Ch. 562 ; re Bignold, 9 Beav. 
 269 ; but see ex parte Shackell, 2 D. M. & G. 842 ; ex parte Heming, 28 L. T. 144. 
 
 " Special circumstances" have generally been held to signify either "pressure, 
 accompanied by some overcharge," or "overcharges or errors so gross as to amount 
 to fraud." For cases of pressure, such as the refusal to deliver up deeds, see re 
 Alcock, 2 Coll. 92 ; re Elmslie, 12 Beav. 538 ; re Lett, 31 Beav. 488 ; re Pugh, 12 
 Beav. 173 ; 1 D. J. & S. 673 ; or threats to enforce securities, re Kinneir, 7 W. R. 
 175 ; re Ranee, 22 Beav. 177 ; re Foster, 2 D. F. & J. 105 ; or generally taking 
 advantage of the exigences of the client's position, re Stephen, 2 Ph. 562 ; Nokes v. 
 Wharton, 5 Beav. 448. These cases do not apply if the client has had an oppor- 
 tunity of examining and taxing the bill, re Neate, 10 Beav. 181 ; re Welchman, 11 
 Beav. 319 ; re Currie, 9 Beav. 602 ; re Boyle, 5 D. M. & G. 540 ; re Browne, 1 D. 
 M. & G. 322. In re Barrow, 17 Beav. 547, the M. R. said the doctrine of pressure 
 in cases of taxation after payment is not to be ex*" led. 
 
 Where there has been no pressure the Court will, after payment, order taxation 
 only on proof of "overcharges amounting to evidence of fraud," re Strother, 3 K. 
 & J. 518 ; Ruttan v. Austin, 8 U. C. L. J. 47 ; Gillespie v. Shaw, 10 U. C. L. J. 
 100. Some of the particular items relied on must be specifically pointed out, 
 Dunt V. Dunt, 9 Beav. 14ii ; re Towle, 30 Beav. 170 ; re Browne, 1 D. M. & G. 
 322, 333 ; trifling items will be insufficient, re Drake, 8 Beav. 123 ; re Thompson, 8 
 Beav. 237 ; re Bayley, 18 Beav. 415 ; if the practice in the taxing-master's office as 
 to allowing the items objected to is uncertain, the solicitor has the benefit of the 
 doubt, re Walsh, 12 Beav. 490 ; and generally the onus rests on the client to shew 
 that the charges under the special circumstances were fradiilent, re Towle, 30 
 Beav. 170. 
 
 Where the overcharges evidence actual fraud, very slight circumstances will 
 induce the Court to re-open the taxation, Nokes v. Wharton, 5 Beav. 448 ; re Hard- 
 ing, 10 Beav. 250. 
 
 See also as to great overcharges, Sayer v. Wagstaff, 6 Beav. 415 ; re Bennett, 8 
 Beav. 467 ; re Sladden, 10 Beav. 488 ; ex parte Andrews, 13 L. J. Ch. 222 ; ex parte 
 Hemming, 28 L. T. 144. 
 

 TAXATION. 
 
 [135] 
 
 The Court will only direct taxation if there is at least a reasonable belief that 
 if the bill be taxed, some of the charges will be disallowed, re Sladden, 10 Beav. 
 488 ; therefore some items of overcharge Ghould be pointed out, re Brady, 15 W. R. 
 632 ; re Cameron, 2 Ch. Ch. R. 311 ; though not necessarily such as amount to 
 fraud, re Newman, 15 W. R. 630 ; re Wells, 8 Beav. 416 ; re Hubbard, 15 Beav. 
 251 ; re Abbott, 18 Beav, 393 ; re Towle, 30 Beav. 170. 
 
 The absence of any affidavit or other evidence as to items of overcharge, will be 
 a reason for dismissing the petition, ex ixtrtc Barton ; re Finch, 16 Beav. 585 ; 
 4 D. M. & G. 108 ; re Thompson, 2 Ch. Ch. R. 100. 
 
 That the bill was paid under protest is material only if connected with circum- 
 stances of overch>'r^e or pressure, and where a bill is paid under protest, the items 
 objected to shoula, if possible, be pointed out, re Dearden, 9 Exch. 210, re Bayley, 
 18 Beav. 415 ; re Davie, 8 W. R. 15. 
 
 48. In all cases in which a bill is referred to be taxed, the 
 ofiicer to whom the reference is made may request the proper 
 officer of any other Court, to assist him in taxing any part of 
 such bill, and such officer, so requested, shall thereupon tax the 
 same, and shall have the same powers, and may receive the 
 same fees in respect thereof, as upon a reference to him by the 
 Court of which he is such officer, and he shall return the bill, 
 with his opinion thereon, to the officer who so requests him to 
 tax the same. C. S. U. C, c. 35, s. 43. 
 
 49. All applications made to refer any bill to be taxed, or 
 for the delivery of a bill, or for the delivering up of deeds, 
 documents, and papers, shall be made " In the matter of (such 
 attorney or solicitor) ;" and upon the taxation of any such bill, 
 the certificate of the officer by whom the bill is taxed shall 
 ^unless set aside or altered by order of a Judge, decree or rule 
 of Court,) be final and conclusive as to the amount thereof, and 
 payment of the amount certified to be due and directed to be 
 paid may be enforced according to the practice of the Court in 
 which the reference has been made. C. S. U. C, c. 35, s. 44. 
 
 This section differs from the English Act, 6 & 7 Vic, c. 73, and it has been held 
 that under this section there is no authority, without consent, to reserve the right 
 to dispute the retainer, in re Totten, 27 U. C. R. 449. But where, on an application 
 by a solicitor for a taxation, the client disputed the retainer as to the whole bill, 
 and also set up the Statute of Frauds, it was held that the Court could refer these 
 defences to the Master, re Bacon, 3 Ch. Ch. R. 79 ; and see re Lewis, 9 U. C. 
 L. J. 81. 
 
■,'4" v*. ■ 
 
 [136] 
 
 ENGLISH TRUSTEE ACT, 1847. 
 
 i« , 
 
 An Act for better securing Trust Funds, and for 
 the relief of Trustees. 
 
 (Imperial Statutes, 10 & 11 Vict., Cap. 96.) 
 
 [22nd July, 1847.] 
 
 WHEREAS it is expedient to provide means for better 
 securing trust funds, and for relieving trustees from 
 the responsibility of administering trust funds in cases where 
 they are desirous of being so relieved : Be it enacted, etc., that 
 all trustees, executors, administrators, or other persons having 
 in their hands any moneys belonging to any trust whatsoever, 
 or the major part of them,'shall be at liberty, on tiling an affidavit, 
 shortly describing the instrument creating the trust, according to 
 the best of their knowledge and belief to pay the same, with the 
 privity of the Accountant-Generalof the High Court of Chancery 
 into the Bank of England, to the account of such Accountant- 
 General in the matter of the particular trust, (describing the 
 same by the names of the parties, as accurately as may be, for 
 the purpose of distinguishing it), in trust to attend the orders 
 of the said Court, and that all trustees or other persons having 
 any annuities or stocks standing in their names in the books of 
 the Governor and Company of the Bank of England, or of the 
 East India Company, or South Sea Company, or any Govern- 
 ment or Parliamentary securities standing in their names, or in 
 the names of any deceased persons of whom they shall be per- 
 sonal representatives, upon any trusts whatsoever, or the major 
 part of them, shall be at liberty to transfer or deposit such 
 stocks or securities into or in the name of the said Accountant- 
 General, with his privity, in the matter of the particular trust 
 (describing the same as aforesaid), in trust to attend the orders 
 of the said Court; and in every such case the receipt of one of 
 the cashiers of the said Bank for the money so paid, or, in the 
 case of stocks or securities the certificate of the proper officer, of 
 the transfer or deposit of such stocks or securities, shall be a 
 sufficient discharge to such trustees or other persons for the 
 money so paid, or the stocks or securities so transferred or 
 deposited. 
 
ENGLISH TRUSTEE ACT, 1847. 
 
 [137] 
 
 2, And be it enacted that such orders as shall seem fit shall 
 be from time to time made by the High Court of Chancery in 
 respect of the trust moneys, stocks, or securities so paid in, 
 transferred and deposited as aforesaid, and for the investment 
 and payment of any such moneys, or of any dividends or 
 interest on any such stocks or securities, and for the trausfer 
 and delivery out of any such stocks and securities, and for the 
 administration of any such trusts generally, tipon a petition to 
 be presented in a summary way to the Lord Chancellor or the 
 Master of the Rolls, without bill, by such party or parties as to 
 the Court shall appear to be competent and necessary in that 
 behalf, and service of such petition shall be made upon such 
 person or persons as the Court shall see fit to direct ; and every 
 order made upon any such petition shall have the same 
 authority and effect, and shall be enforced and subject to re- 
 hearing and appeal, in the same manner as if the same had 
 been made in a suit regularly instituted in the Court ; and if 
 it shall appear that any such trust funds cannot be safely 
 distributed without the institution of one or more suitor suits, 
 the Lord Chancellor or Master of the Rolls may direct any 
 such suit or suits to be instituted. 
 
 [3. Regulates salary of Accountant-General.] 
 
 [4. Gives power to the Lord Chancellor to make orders for 
 better carrying the provisions of this Act into effect.] 
 
 [5, Construes the expression " Lord Chancellor."] 
 
 The Court of Chancery of Ontario had the like jurisdiction and power as the 
 Court of Chancery in England possessed on the 10th June, 1857, as a Court of Equity 
 to administer justice in all cases in which there existed no adequate remedy at law. 
 R. S. O. c. 40, 8. 36. By virtue of this provision, the Court had both the equity and 
 statutory jurisdiction which the Court of Chancery in England at that date pos- 
 sessed, and it is by virtue of that provision that the Court exercised tlie jurisdiction 
 conferred on the Court of Chancery in England by the Trustee Relief Acts, passed 
 prior to the 10th June 1857. The Trustee Acts are in force here as well as in Eng- 
 land, per Esten, V. C., Hill v. Ironsides, 3rd September, 1861, and see re Lash, 1 
 Ch. Ch. R. 226. 
 
 By the Ontario Judicature Act, 1881, it is provided (sec. 9) that the High Court of 
 Justice shall have the jurisdiction which at the commencemenc of this Act, was 
 vested in, or capable of being exercised by the Court of Chancery, and shall be 
 deemed to be, and shall be a continuation of the Courts named in that section. 
 Although the High Court of Justice in Ontario exercises this jurisdiction, it is not 
 correct to say that those Imperial Statutes are in force in Ontario. As statutes of 
 the Imperial Legislature they have no force in Ontario ; their effect here is due to 
 their being incorporated into the statutes of our Provincial Legislature, and by virtue 
 of such incorporation becoming in effect Acts of the Provincial Legislature, see 
 observations of Esten V. C. re Hodges, 1 Gr. 289. 
 
 The jurisdiction which the Court here exercises by virtue of these Acta 
 would still be exercised, although they should be repealed by the Imperial 
 Parliament. 
 
,ii 
 
 9W 
 
 if 
 
 »1 
 
 ■•ir'.i 
 
 < I 
 
 ! )■ 
 
 [138] 
 
 ENGLISH TRUSTEE ACT, 1847. 
 
 Persona entitled to pay money tn.— The following persons have been held entitled 
 to pay money into Court under this Act :— (1) Mortgagees who have sold under a 
 power of sale, where there is a doubt as to the person entitled to the surplus, 
 Koberts v. Ball, 24 L. J. Ch. 471 : re Kingsland, 15 C. L. J. 85 ; but see Western 
 Canada L. & S. Co. v. Court, 25 Gr. 151. (2) Insurance Companies where there are 
 adverse claims to the moneys payable under the policy, and the policy is subject to 
 a trust, Desborough v. Harris, 5 D. M. & G. 4.X9 ; re Hall, 10 W. R. 37 ; re United 
 Kingdom Assurance Co., 34 Beav. 493; re Webb, L. R. 2 Eq. 456; re Moseley, 18 
 W. R. 126. But the Act does not authorize money payable under a policy to be 
 paid into Court merely because it is doubtful who is entitled to receive it, Matthew 
 V, Northern Assurance Company, L. R. 9 Ch. D. 80. But where money has been 
 paid into Court in a case to which the Act does not applv, on an application for 
 payment out that objection cannot be entertained, the only mode in which it can 
 be raised is by bringing a suit, re Haycock, L. R. 1 Ch. D. till. (3) Purchasers 
 who cannot otherwise get receipts, Cox v. Cox, 1 K. & J. 251. (4) Stakeholders, re 
 Kemptner, L. R. 8 Eq. 280 ; re United Kingdom Life Assurance Company, 34 
 Beav. 494 ; but see Western Canada L. & S. Co. v. Court, supra ; Matthew v. 
 Northern Assurance Co., switra. (5) Executors, administrators or trustees, even 
 where they claim a beneficial interest in the fund, re Henshaw, 43 L. J. Ch. 98 ; or 
 where they cannot get a valid discharge otherwise, e.g. , where the c. q. t. is an 
 infant, re Cawthorne, 12 Beav. 56; re Beauclerk, 11 W. R. 203; re Coulson, 4 Jur. 
 N. S. 6 ; re Richards, L. R. 8 Eq. 119 ; or a lunatic, re Upfull, 3 McN. & G. 281 ; 
 re Irby, 17 Beav. 334 ; but in other cases there must be a bona fide doubt as to the 
 
 Earty entitled, re Jones, 3 Drew, 679 ; re Headington, 6 W. R. 7 ; re Lane, 24 
 I. T. 18L ; or as to some question of law arising on the claim, re M'Lean, L. R. 19 
 Eq., 282. 
 
 Act not compulsory. — A trustee who prefers to act personally in the trust cannot 
 be compelled to pay the trust fund into Court, Mountain v. Young, 18 Jur. 769 ; 
 Handley v. Davis, 28 L. J. Ch. 873. But where stock was standing in the name 
 of a deceased trustee, and his next of kin refused to administer to his estate so as 
 to be mixed up with the trust, an order was made for the transfer of the stock into 
 Court, on the petition of the tenant for life, and the petitioner's solicitor was 
 appointed to make the transfer, re Thornton, 9 W. R. 475. 
 
 And where in consequence of the refusal of a trustee to pay the trust fund into 
 Court a suit became necessary, he was ordered to pay thj costs of it, Ha:\dleyi;. 
 Davis, 28 L. J. Ch. 873 ; and see Gunnell v. Whitear, L. R. 10 Eq. 664. 
 
 Under Imperial Statute, 12 & 13 Vict., c. 74, an order may be made for pay- 
 ment in, whfe»3 the majority of the trustees are willing though the rest do not 
 concur. 
 
 Persons not entitled to pay money in. — A person whose estate is charged with a 
 sum of money in favour of another, as, for instance, a mortagor, is not entitled to 
 pay the amount of such charge into Court, re Buckley, 17 Beav. 110 ; re Cooper, 
 17 Jur. 1087 ; Warburton v. Cicognara, I. R. 3 Eq. 592 j but see Trustee Act, 
 1850, s, 48. 
 
 A mere debtor cannot, because he has doubts as to his creditors' title to receive 
 the monej\ avail himself of the provisions of the Act by paying the amount of the 
 debt into Court, Matthew v. Northern Assurance Company, L. R. 9 Ch. D. 80. 
 
 Foreign Bonds. — The Act does not authorize the transfer of the bonds of a 
 foreign government into Court, re Lloyd, 2 W. R. 371. 
 
 Payment in— How mode— Under the English practice no order is necessary 
 for payment of money into Court under the Trustee Relief Acts, re Biggs, 11 
 Beav. 27. 
 
 The following general orders were made in England, in pursuance of the power 
 given by the Act : 
 
 1. Any trustee desiring to pay money or transfer stock or securities into the 
 name of the Accountant-General of the Court of Chancery under the said Act, is 
 to file an affidavit entitled in the matter of the Act and of the trust, and setting 
 forth : (1) His own name and address ; (2) The place where he is to be served with 
 any petition, or any notice of any proceeding or order of the Court relating to the 
 trust fund ; (3) The amount of stock, securities or money which he proposes to de- 
 
 Sosit, or to transfer, or to pay into Court to the credit of the trust ; (4) A short 
 escription of the trust, and of the instrument creating it ; (5) The names of the 
 parties interested in or entitled to the fund, to the best of the knowledge and belief 
 
ENGLISH TRUSTEE ACT, 1847. 
 
 [139] 
 
 9 of the power 
 
 of the trustee ; (6) The dnbrnission of the trustee to answer all such inouiries relat- 
 in£[ to the application of the stocks, securities, or money transferred, aeposited, or 
 paid in, unaer the Act, as the Court may think proper to direct. 
 
 2. The Accountant General, on production of an office copy of the affidavit, is 
 to give the necessary directions for transfer, deposit, or payment, and to place the 
 stock, securities or money to the account of the particular trust, and such transfer, 
 deposit or pa}rment is to oe certified in the usual manner. 
 
 3. The trustee, having made the payment, transfer or deposit, is forthwith to 
 give notice thereof to the several persons named in his affidavit as interested in or 
 entitled to the fund. 
 
 4. Such persons, or any of them, or the trustee, may apply by petition, as occa- 
 sion may require, respectmg the investment, pajrment out, or distribution of the 
 fund, or of the dividends or interest thereof. 
 
 5. The trustee is to be served with notice of any application made to the Court 
 respecting the fund, or the dividends or interest thereof, by any party interested 
 therein or entitled thereto. 
 
 3. The parties interested in or entitled to the fund, are to be served with notice 
 of any application made to the Court by the trustees respecting the fund in Court, 
 or the interest or dividends thereof. 
 
 7. No petition is to be set down to be heard, until the petitioner has first 
 named a place where he may be served with any petition or notice of any proceed- 
 ing or order of the Court relating to the trust fund. 
 
 8. Petitions presented and affidavits filed under the said Act are to be entitled 
 in the matter of the said Act (10 & 11 Vic. c. 96), and in the matter of the partic- 
 ular trust. 
 
 These orders shew the mode of proceeding under the Act at the date, when by 
 virtue of the Statutes already referred to, the Court of Chancery in Ontario 
 acquired power to exercise this jurisdiction. It may be doubted whether they are, 
 properly speaking, in force here, and the practice has been to apply in Chambers 
 or to the Court for an order authorizing the payment of the money into Court. 
 (See Leggo's Forms (2nd ed.) No. 797—9.) 
 
 The affidavit on which the application is founded should give full information 
 as to the trust, so as to shew on the account how the sum paid in is affected 
 thereby, re Waring, 16 Jur. 652. The affidavit should also state all persons who 
 are claimants of the fund of whom the deponent has knowledge, otherwise the 
 trustee may be charged with the costs of any such claimant obtaining a stop order, 
 re Allen, 40 L. T. N. S. 456. All the trustees should join in the affidavit, but 
 under particular circumstances the affidavit of one of several trustees may be 
 accepted, v. , 1 Jur. N. S. 974. 
 
 The order should provide that a copy of it shall be served on the parties named 
 in the trustees' affidavit, as being interested in the truit fund. (See Leggo's 
 Forma (2nd ed.). No. 799.) 
 
 The Court refused, on an ex parte application, to give any special directions for 
 service of notice of the payment of the fund into Court, but :— Held that the suffi- 
 ciency of the notice served must be determined on the motion for payment out, 
 re Hardley, L. R. 10 Ch. D. 664. 
 
 ^ect of payment in of Trmt Fund. — The trustee, by payment into Court, dis' 
 charges himself from the future administration of, and control over the trust fund 
 paid in, re Coe, 4 K. & J. 199 ; re Wright, 3 K. & J. 421, and the Court undertakes 
 such administration in his place, so that where a trustee had paid money into 
 Court, and a new trustee was thereupon appointed as in the case of a trustee desiring 
 to be discharged, it w^as held tha<>tne trustee, by paying the fund into Court, had 
 in effect retired from the trust, and that the new trustee had been validly appointed, 
 re Williams, 4 K. & J. 87 ; re Bailey, 3 W. R. 31. But until the Court deals with 
 the fund, he is still trustee for the purpose of receiving notice of incumbrances 
 upon the fund, Thompson v. Tomkms, 2 Dr. & Sm. 8, and he cannot get a full 
 discharge, except by proceeding to have his accounts taken, Barker v. Peile, lb. 
 340. A trustee paying money into Court is not discharged from liability for past 
 breaches of trust in respect of those moneys, Att.-Gen. v. Alford, 2 Sm. & G. 488 ; 
 4 D. M. & G. 843 ; re Fagg, 19 L. J. Ch. 175 ; re Waring, 21 L. J. Ch. 784 ; nor 
 from liability to pay more, if more is due, Beaty v. Curson, L. R. 7 Eq. 194 ; 
 Goode V. West. 9 Ha. 378 ; Mitchell v. Cobb, 17 L. T. 25 ; re Jephson, 1 L. T. N, 
 
[140] 
 
 ENGLISH TRUSTEE ACT, 1847. 
 
 S. 5 ; Thorp v. Thorp, I K. & J. 438. But after payment into Court the remedy 
 of the c. q. t. for any past breach of trust, or to compel the recovery of a larger 
 Bum than that paid in, ia by suit, re Jenkins, lU Jur. N. S. 332. But see re 
 Wright, 1 Sm. & G. app. 5, where an order was made on the petition of the c. q. 
 t. for the trustee to pay into Court future instalments of the fund ; and re Cham- 
 berlain, 22 Beav. 28(5, where an order was made for payment of the income accru- 
 ing on any future instalments whi9h miglit b j paid in, to the same account. But 
 whether the Court had any jurisdiction to order the payment in of future accruing 
 instalments of the fund, seems doubtful, see re Lloyd, 2 Ir. Eq. 507 ; re Fortune, 
 4 Ir. Eq. 351 ; Trustee Act, 1850, s. 31. 
 
 Where money is paid into Court in a case to which the Act does not apply, the 
 party paying in is not discharged from liability therefor, and the amount paid in 
 may be recovered in a suit brought by the pers<m entitled, notwithstanding the 
 payment of it into Court, Matthew v. Northern Assurance Co., L. R. 9 Ch. D. 
 80. 
 
 But where the person entitled applies for payment out of the fund, the juris- 
 diction of the Court to deal witli the fund is admitted, and an objection that the 
 Act did not warrant its being paid into Court cannot be entertained even on the 
 question of costs, re Haycock, L. K. 1 Ch. D. till. 
 
 Payment out. — The application for payment out should as a general rule be by 
 petition to the Court, re Masselin, 15 Jur. Iu73 ; ex parte Stock, 5 Ir. Ch. K. 341 ; 
 but where the fund is of small amount the application may be made by motion in 
 Chambers, re Wheeler before Keferee, March, 187!). In England the application 
 is in Chambers where the fund is £300 or under. Where an order has been miide 
 by the Court on petition, future proceedings upon it may be taken in Chambers, 
 re Hodges, 4 D. M. & G. 4'Jl. 
 
 The application should be made by the c. q. t., and not by the trustees and 
 where the latter applied at the request of the c. q. t. they were only allowed 
 respondent's costs, re Cazneau, 2 K. & J. 249 ; reTrowes, 1 L. T. N. S. 54 ; re Hut- 
 chinson, 1 Dr. & Sm. 27. 
 
 A petition may be presented by a person entitled to an aliquot share without 
 bringing the other parties before the Court, re Betford, 21 L. T. 164. 
 
 It was held formerly that only the persons named as c. q. t. in the trustees' 
 affidavit could apply, re Jephson, 1 L. T. N. S. 5 ; and see Crause v. Cooper, 1 J. 
 & H. 207 ; and that any other claimants must bring a suit, but the later practice 
 of the Court in England has not been in accordance with that rule, see re Puttrell, 
 L. K. 7 Ch. D. 047 ; and any person claiming to be entitled may apply whether 
 named in the trustees' attidavit or not. 
 
 A petitioner may proceed in forma pauperis, re Money, 13 Beav. 109. 
 
 The trustees are, generally speaking, entitled to notice of the application, but 
 service on them may be dispensed with in a clear case, re Young, 5 W. R. 400 ; re 
 Beauclerk, 11 W. K. 203 ; i-e Thomas, ib. 270 ; or where the trustee has not been 
 heard of for ten years, re Bolton, 18 W. R. 56; or substitutional service may be 
 allowed, ex parte Baugham, 16 Jur. 325 ; re La'vrence, 14 W. R. 93 ; but where the 
 title of a c. q. t. as tenant for life is clear the trustees should not appear on his 
 application for payment out of the income, re Evans, L. R. 7 Chan. App. 609 ; re 
 Battell, 21 W. R. 138. 
 
 All parties named in the trustees' affidavit as being interested in the fund should 
 be notified of an application for payment out of the corpus. But where the parties 
 are numerous leave may be granted to serve some of them on behalf of the class, re 
 Colson, 2 W. It. Ill ; so also service may be dispensed with where the party is 
 abroad and cannot be heard of, re Hansford, 7 W. R, 199 ; re Naylor, 28 L. T. N. 
 S. 18. 
 
 But the petition may be served if necessary on a party out of the jurisdiction 
 re Haney, L. R. 13 Ch. 275. It ii not necessary that the remainderman should be 
 notified of an application by the tenant for life for payment out of the income, re 
 Whitling, 9 W. R. 830 ; re Marnes, L. R. 3 Eq. 432 ; re Hodges, 6 W. R. 487 ; ex 
 parte Fletcher, 12 Jur. 619. 
 
 Where any parties served claim no interest they should not appear, provided 
 they have been paid a sufficient sum to enable them to obtain the advice of a soli- 
 citor, (and see Judicature Act, 0. L. r. 7), if notwithstanding, they appear they 
 
share without 
 
 ENGLISH TRUSTEE ACT, 1847. 
 
 [141] 
 
 19 
 
 will get no coBts, re Smith, 3 Jur. N. S. 059 ; re Biich, 2 K. & J. 369 ; re Coven- 
 try, 19 Beav. 158 ; Roberts v. Ball, 24 L. J. Ch. 471 ; l)ut see ex parte Queen's Coll. 
 6 W. R. 9 ; Rudge v. Weedon, 11 W. R. 819 ; Strong v. Strong, 6 VV. R. 455 ; 
 Robertson v. Grant, 3 Ch. Ch. R. 331 ; and see Judicature Act O. L. r. 10. 
 
 On an application of a tenant for life for payment of income, the remainder- 
 man, although notified, was refused his costs, re Thornton, 9 W. R. 475. An order 
 made under the Act has the force of a decree, re Smyth, 11 W. R. 850. Upon a 
 petition for payment out, the Court has the same jurisdiction to determine the 
 rights of rival claimants of the fund .as upon a bill filed, Lewis v. Hillman, 3 H. 
 L. 007, and may direct an issue to try the sanity of a testator, re Allen, Kay, app. 
 51, or may make an order reforming a deed, re Hoare, 4 Gitf. 254 ; rf l)e La 
 Touche, L. R. 10 Eq. 003 ; re Bird, L. R. 3 Ch. D. 214 ; or may make an order 
 directing the administration of the fund as in an administration suit, Hankey v. 
 Morley, 4 Jur. N. S. 2M ; re Trower, 1 L. T. N. S. 54. The Court may, however, 
 direct a suit to be brought to determine the rights of the parties, re Fozard, 24 L, 
 J. Ch. 441 ; Thorp v. Thorp, 1 K. & J. 438 ; re Sharpe, 15 Sim. 470 ; re Bloye, It 
 L. J. Ch. 89 ; or direct a reference to the Master, re Bolton, 18 W. R. 56. 
 
 Where a trust fund has been paid into Court upon "the trusts of a will," it 
 cannot be paid out except upon a general administration of the testator's 
 estate, or upon the responsibility of the trustee, re Wright, 15 Beav. 307 ; and see 
 re Edwards, 4 W. R. 801. But where money was paid in by an executor in ignor- 
 ance of debts, it was paid out to him again by consent, ex parte Tournay, 3 D. & 
 Sm. 677 ; and a fund ))aid int'o Court as part of a testator's estate was ordered to 
 bear a proportionate share of the costs of a suit to administer the estate, Mutlow 
 V. Mutlow, 4 D. &. J. 539. 
 
 Where the person entitled to a fund paid into Court under the Act is a lunatic 
 not so found by inquisition, the appointment of a cotnmittee to the estate of the 
 lunatic is not essential as a condition of getting the money out of Court, but a per- 
 son may be appointed by the Court to act " in the nature of a guardian " of the 
 person and estate of the lunatic to whom the money may be ordered to be paid on 
 his undertaking to apply it for the maintenance, comfort and support of the lunatic, 
 re Brandon, L. R. 13 Ch. D. 773. 
 
 Costs. — The Court has power to award costs of proceedings under the Act, re 
 Woodburn, 1 D. & J. 351 ; re Armston, 4 D. J. & S. 454 ; re Cater, 25 Beav. 
 361, 366. 
 
 Prima Jade the party paying in is entitled to his costs between solicitor and 
 client of payment in, re Webb, 14 W. R. 857 ; re Cobbe, 15 W. R. 29 ; and also of 
 his costs of appearance on the application for payment out, when served, re 
 Erskine, 1 K. & J. .302 ; re Croyden, 14 Jur. 54 ; re Wylly, 28 Beav. 458 ; re 
 Wright, 3 K. & J. 419 ; re Headington, 27 L. J. Ch. 175 ; re Robertson, 6 W. R. 
 405 ; re Brocklesby, 29 Beav. 052. But it is not a matter of course that the party 
 paying in gets his costs, re Elgar, 11 L. T. N. S. 415 ; re Lane, 24 L. T. 181 ; Han- 
 key V. Morley, 4 Jur. N. S. 234 ; Handley v. Davies, 5 Jur. N. S. 190 ; re Birkett, 
 L. R. 9 Ch. D. 576. Trustees have been disallowed their costs of appearing on a 
 petition for payment out where they acted with unreasonable caution in pay- 
 mg the fund mto Court, re Leake, 32 Beav. 135 ; re Fagg, 19 L. J. Ch. 175 ; re 
 Heming, 3 K. & J, 40 ; re Metcalfe, 2 D. J. & S. 122 ; re Covington, 25 L. J. Ch. 
 238 ; re Elliott, L. R. 15 Eq. 194 ; re Cull, L. R. 20 Eq. 501 ; and see Firmin v. 
 Pulham, 2 D. & Sm. 99 ; re Pearson, 20 L. T. N. S. S ; or have paid the money 
 in to anticipate a bill about to be filed against them, re Waring, 21 L. J. Ch. 784 ; 
 Att.-Gen. v. Alford, 2 Sm. & G. 488. Where the payment into Court is not war- 
 ranted by the Act, the costs of payment in cannot be allowed, Matthew v. 
 Northern Assurance Co. , L. R. 9 Ch. D. 80, unless the party entitled to take the 
 objection waives it by applying for payment of the money out of Court, re Hay- 
 cock, L.E.I Ch. D. Oil. Trustees have been disallowed costs of unnecessary 
 proceedings, e.g. , unnecessarily taking copies of aifidavits, re Lazarus, 3 K & J. 
 555 ; re Metcalfe, 3 N. R. 657 ; and in cases of gross misconduct trustees have been ,1_ 
 ordered to pay the costs of the petition for payment out, re Woodburn, 1 D. &;Jf't| ^• 
 333 ; re Cater, 25 Beav. 361, 360 ; as where the Court considered the title of the ■?»' 
 claimant perfectlj' clear, re Hoskin, L. R. 5 Ch. D. 229 ; re Foligno, 32 Beav. 13l|;'t > 
 re Elliott, L. R. 15 Eq. 194 ; and where the trustees neglected to make reasonable i, 
 inquiries, re Knight, 27 Beav. 45 ; re Woodburn, supra; Beaty v. Curson, L.iJl.) 
 7 Eq. 194. But if before paying in the trustee deduct his costs of paying in, ^e 
 Court may direct the taxation of such costs, re Hue, 27 Beav. 337 ; but it hai 
 
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 [142] 
 
 ENGLISH TRUSTEE ACT, 1847. 
 
 jurisdiction, except upon bill filled, to make any order as to such costH, either for 
 the refunding of the whole or of any excesa beyond what may be allowed on taxa- 
 tion, re Bloye, 1 Mac. & G. 604 ; re B ber, 9 Jur. N. S. 10'J8. 
 
 Although a trustee cannot be compelled to pay the trust fund into Court, yet 
 where, in a proper cose, upon requeflt to do so he refused, and a suit became neceH- 
 sary, the Court refused to allow him any more costs than he would have incurred 
 had he complied with the request, and the plaintiff had ai>plied by petition, Weller 
 V. Fitzhugh, W. N. (1870), 144; Gunnell v. Whitear, L. R. 10 Eq. 664. 
 
 Out of what fund costs payable, — The trustees may deduct their reasonable costs 
 of paying the money into Court from the fund, where no dispute has arisen or is 
 likely to arise as to the deduction, Beaty v. Cursou, L. R. 7 Eq. 194 ; re Fortune, 4 
 Ir. Eq. 351. The fund paid in, however, is not always the fund out of which the 
 costs of payment in should be deducted, thus where the payment into Court becomes 
 necessary in consequence of a difficulty arising under a will, the trustees costs of 
 payment in should come out of the residuary estate, re Cawthorne, 12 Beav. .56; 
 re Jones, 2 Drew. 679; re Trick, L. R. 5 Chan. Anp. 170; re Birkett, L. R. 9 Ch. 
 D. 676. But where the fund is completely severed, and is paid in by the trustee 
 and not the personal representative, the costs of payment in may come out of the 
 fund itself, re Lorimer, 12 Beav. 521. 
 
 After some conflict of authority it seems to be now settled that all the costs of 
 an application for payment out of the income (including the costs of the trustees) 
 ought to come out of tne income, and the costs of an application for payment out 
 of the corpus should come out of the corpus, re Mason, L. R. 12 Eq. Ill ; re Whit- 
 ton, L. R. 8 Eq. 353 ; re Evans, L. R. 7 Ch. App. 609 ; re Smith, L. R. 9 Eq. 374. But 
 where the title of a tenant for life petitioning for payment out of income is clear, it 
 has been held the trustee ought not to appear, anci is not entitled to costs, re Evans, 
 L. R. 7 Ch. App. 609 ; re Battell, 21 W. R. 138 ; and under similar circumstances 
 the costs of a remainderman appearing on such an application have been refused, 
 re Thornton, 9 W. R. 475. 
 
 \'v\\ 
 
 Fl;;'if 
 
ENGLISH TRUSTEE ACT, 1849. 
 
 [143] 
 
 An Act for the further relief of Trustees. 
 
 (Imp. Stat. 12 & 13 Vic. Cap. 74.) 
 
 [28th July, 1849.] 
 
 WHEREAS difficulties have arisen in the transfer of securi- 
 ties vested in trustees in certa.n cases under the provi- 
 sions of an Act passed in the session of Parliament holden in the 
 tenth and eleventh years of the reign of Her present Majesty, 
 intituled "An Act for better securing Trust Funds, and for the 
 relief of Trustees," and it is expedient to make a further pro- 
 vision for carrying into effect the objects of the said recited 
 Act : Be it therefoie enacted, etc., that if, upon any petition 
 presented to the Lord Chancellor or Master of the Rolls in the 
 matter of the said Act it shall appear to the Judge of the 
 Court of Chancery before whom such petition shall be heard 
 that any moneys, annuities, stocks, or securities, are vested in 
 any persons as trustees, executors, or administrators, or other- 
 wise, upon trusts within the meaning of the said recited Act, 
 and that the major part of such persons are desirous of transfer- 
 ring, paying, or delivering the same to the Accountant-General 
 of the High Court of Chancery under the provisions of the 
 said recited Act, but that for any reason the concurrence of the 
 other or others of them cannot be had, it shall be lawful for 
 such Judge as aforesaid to order and direct such transfer, pay- 
 ment or delivery to be made by the major part of such 
 persons without the concurrence of the other or others of 
 them ; and where any such moneys or Government or Parlia- 
 mentary securities shall be deposited with any banker, broker, 
 or other depositary, it shall be lawful for such Judge as afore- 
 said to make such order for the payment or delivery of such 
 moneys, Government or Parliamentary securities, to the major 
 part of such trustees, executors, administrators, or other per- 
 sons as aforesaid, for the purpose of being paid or delivered 
 to the said Accountant-General as to the said Judge shall seem 
 meet ; and every transfer of any annuities, stocks, or securities, 
 and every payment of money, or delivery of securities, in pur- 
 
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 M 
 
 S'fT-i 
 
 
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 M 
 
 [144] 
 
 ENGLISH TRUSTEE ACT, 1849. 
 
 suance of any such order, shall be as valid and effectual as 
 if the same had been made on the authority, or by the Act, 
 of cill the persons entitled to the annuities, stocks or securities 
 so transferred, or the moneys or securities so paid or delivered 
 respectively, and shall fully protect and indemnify the Gover- 
 nor and Company of the Bank of England, the East India Com- 
 pany, and the South Sea Company, and all other persons acting 
 under or in pursuance of such order. 
 
 See re Broadwood, 8 L. T. N. S. 632, the non-concurring trustees must be 
 served with the petition, re Bryant, W, N. (1808) 123. 
 
1- :■ i 
 
 fectual as 
 ^ the Act, 
 securities 
 ■ delivered 
 ihe Gover- 
 ndia Com- 
 ions acting 
 
 teea must be 
 
 E^TGLISH TRUSTEE ACT, 1850. 
 
 [145] 
 
 An Act to consolidate and amend tie Laws relating 
 to the Conveyance and Transfer of Real and Per- 
 sonal Property vested in Mortgagees and Trustees. 
 
 II.' 
 
 (Imperial Statute 13 & 14 Vic. Cap. GO,) 
 
 [5th August, 1850.] 
 
 [1. Section I. repeals 11 Geo. IV. and 1 Wm. IV. c. 60, 4 and 
 5 Wm. IV. c. 23 ; 1 and 2 Vict. c. 09.] 
 
 [Although the statutes 11 Geo. IV. & 1 Wm. IV. c. 60 and 4 & 5 Wm. IV. 
 c. 23, are repealed by the Imperial Parliament, their provisions are still in force in 
 Ontario so far as applicable, under R. S. O., c. 40, s. 35; 1 & 2 Vict., c. 69, not 
 having been passed until 4th August, 1838, its provisions were never in force in 
 Ontario.] 
 
 2. And whereas it is expedient to define the meaning in 
 which certain words are hereafter used: it is declared that the 
 several words hereinafter named are herein used and applied 
 in the manner following respectively : (that is to say,) 
 
 The word " lands " shall extend to and include manors, 
 messuages, tenements, and hereditaments, corporeal 
 and incorporeal , of every tenure or 'description, what- 
 ever may be the estate or interest therein : 
 
 The word "stock" shall mean any fund, annuity, or 
 security transferable in books kept by any company 
 or society established or to be established, or trans- 
 ferable by deed alone, or by deed accompanied by 
 other formalities, and any share or interest therein : 
 
 The word " seised " shall be applicable to any vested 
 estate for life or of a greater description, and shall 
 extend to estates at law and in equity, in posses- 
 sion or in futurity in any lands : 
 
 m; 
 
 
 f. ■> 
 
[146] ENGLISH TRUSTEE ACT, 1850. 
 
 The word " possessed " shall be applicable to any vested 
 estate less than a life estate, at law or in equity, 
 in possession or in expectancy, in any lands : 
 
 The words " contingent right," as applied to lands, shall 
 mean a contingent and executory interest, a possi- 
 bility coupled with an interest, whether the object 
 of the gift or limitation of such interest or possi- 
 bility be or be not ascertained ; also a right of 
 entry, whether immediate or future, and whether 
 vested or contingent : 
 
 The word " convey " and " conveyance," applied to any 
 person shall mean the execution by such person 
 of every necessary or suitable assurance for con- 
 veying or disposing to another lands whereof such 
 person is seised or entitled to a contingent right, 
 either for the whole estate of the person conveying 
 or disposing, or for any less estate, together with 
 the performance of all formalities required by law 
 to the validity of such conveyance, including the 
 acts to be performed by married women and ten- 
 ants in tail in accordance with the provisions of 
 an Act passed in the fourth year of the reign of 
 His late Majesty King William the Fourth intitul- 
 ed, "An Act for the abolition of fines and recov- 
 eries, and the substitution of more simple modes of 
 assurance," and including also surrenders and other 
 acts which a tenant of customary or copyhold 
 lands can himself perform preparatory to or in aid 
 of a complete assurance of such customary or copy- 
 hold land : 
 
 , 
 
 The words " assign " and " assignment " shall mean the 
 execution and performance by a person of every 
 necessary or suitable deed or act for assigning, sur- 
 rendering, or otherwise transferring lands of which 
 such person is possessed, either for the whole estate 
 of the person so possessed or for any less estate : 
 
 The word "transfer" shall mean the execution and per- 
 formance of every deed and act by which a person 
 >" entitled to stock can transfer such stock from him- 
 self to another : 
 
ii't 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 [147] 
 
 The words " Lord Chancellor " shall mean as well the 
 Lord Chancellor of Great Britain as any Lord Keeper 
 or Lords Commissioners of the Great Seal for the 
 time being : 
 
 The words " Lord Chancellor of Ireland " shall mean as 
 well the Lord Chancellor of Ireland as any Keeper 
 or Lords Commissioners of the Great Seal of Ire- 
 land for the time being : 
 
 The word " trust " shall not mean the duties incident 
 to an estate conveyed by way of mortgage ; but, 
 with this exception the words "trust" and "trustee" 
 shall extend to and include implied and construc- 
 tive trusts, and shall extend to and include cases 
 where the trustee has some beneficial estate or 
 interest in the subject of the trust, and shall extend 
 to and include the duties incident to the office of 
 personal representatives oi a deceased person : 
 
 The word " lunatic " shall mean any person who shall 
 have been found to be a lunatic upon a commission 
 of inquiry in the nature of a writ De lunatico in- 
 quirendo : 
 
 The expression " person of unsound mind " shall mean 
 any person, not an infant, who, not having been 
 found to be a lunatic, shall be incapable from in- 
 firmity of mind to manage his own affairs : 
 
 The word " devisee " shall, in addition to its ordinary 
 signification, mean the heir of a devisee and the 
 devisee of an heir, and generally any person claim- 
 ing an interest in the lands of a deceased person, 
 not as heir of such deceased person, but by a title 
 dependent solely upon the operation of the laws 
 
 concerning: devise and descent ; 
 
 The 
 
 word 
 
 " mortgage " shall be applicable to every 
 estate, interest, or property in lands or personal 
 estate, which would in a Court of Equity be deem- 
 ed merely a security for money : 
 
 The word " person " used and referred to in the mascu- 
 line gender shall include a female as well as a 
 male, and shall include a body corporate : 
 
 II 
 
rn ^ ■ . n i P 
 
 ill; 
 
 [148] 
 
 ENGLISH TRUSTEE ACT, 1850, 
 
 11 ■:,; 
 
 i 
 
 %V 
 
 ii I 
 
 And generally, unless the contrary shall appear from the 
 context, every word importing the singular number only shall 
 extend to several persons or things, and every word importing 
 the plural number shall apply to one person or thing, and 
 every word importing the masculine gender only shall extend 
 to a female. , 
 
 "Stock" includes shares in joint stock companies, re Angelo, 5 D. & Sm. 278. 
 
 A mortgagor cannot obtain an order for a conveyance under the Act without 
 suit, under sections wliich relate only to trustees re Osborn, L. R. 12 Eq. 392. 
 But where the mortgage contafned a power of sale and a trust to hold the surplus, 
 not for the mortgagor's "heirs and assigns," but for his "executors, administrators 
 and assigns," it was held that there had been a conversion of the mortgagor's 
 estate and that the mortgagee was a trustee within the Act, re Underwood, 3 K. 
 & J. 745 ; and see re Crowe, L. R. 13 Eq. 26 ; re Walker, L. R. 3 Ch. D. 209. 
 
 In case of constructive trusts of real estate, it would seem that unless the trust 
 be admitted by the alleged constructive trustee, the decree of the Court must be 
 first obtained declaring the trustee ; thus, where a vendor of reality died before 
 completion, leaving an infant heir, the Court dismissed a petition to declare the 
 latter a trustee for the purchaser, re Carjienter, 1 Kay, 418 ; re Burt, 9 Ha. 289 ; 
 re Dickinson, 17 L. T. 231 ; Cust v. Middleton, 7 Jur. N. S. 151 ; re Weeding, 4 
 Jur. N. S. 707 ; re Faulder, W. N. (1866) p. 83 ; Jackson v. Miltield, 5 Ha. 538; 
 re Miltield, 2 Phil. 2.54 ; re Wise, 5 D. & Sm. 415 ; re Propert, 22 L. J. N. S. Ch. 
 948. But when a vendor died before acceptance of the title, having devised the 
 estate to an infant, and the executors prayed that the infant might be declared a 
 trustee, and might on payment of purchase money to the executors, be ordered to 
 convey to the purchaser who had accepted the title and the prayer was supjiorted 
 by the infant's counsel, the Court made the order, re Lowry, L. R. 15 Eq. 78. So, 
 also, where the heir of a deceased vendor of realty is of full age, he may, without 
 a suit, he declared trustee for the purchaser, re Cuming, L. R. 5 Chan. App. 72 ; 
 re Russell, 12 Jur. N. S. 224 ; re Badcock, 2 W. R. 386. 
 
 A vendor who refused to convey after tender of a deed settled by the Judge, or 
 to receive the purchase money, was declared a trustee, and on payment of the purchase 
 money into Court by the purchaser, the vendor's solicitor was ordered to execute 
 the conveyance, Warrender i'. Foster, 2 Seton (3rd ed.), 822. 
 
 An executor holding a legacy bequeathed to persons successively, is a construc- 
 tive trustee, re Davis, L. R. 12 Eq. 214. 
 
 An heir who takes by descent, but who has by election bound himself to hold 
 upon the trusts of the will, is a, trustee within the Act, Dewar v, Maitland, L. R. 
 2 Eq. 834. 
 
 One of several assignees in bankruptcy was held to be a trustee within the Acti 
 re Joyce, L. R. 2 Eq. 576. 
 
 Where a legacy was bequeathed to an infant, which was directed to be invested 
 in consols and paid to him at twenty-one, subject to trusts for maintenance and educa- 
 tion, etc., and the executors invested the legacy in consols in the joint names of 
 themselves and the infant and died having tT -! infant surviving, the latter was held 
 a trustee within the Act, and the personal representative of the last survivir' 
 trustee was appointed under the Trustee Extension Act, 1852, 33, to transfer f- 
 into Court, Gardner v. Cowles, L. R. 3 Ch. D. 304. 
 
 3. And be it enacted that where any lunatic or person of 
 unsound mind shall be seised or possessed of any lands upon 
 any trust or by way of mortgage it shall be lawful for the 
 Lord Chancellor, intrusted by virtue of the Queen's Sign 
 Manual with the care of the persons and estates of lunatics, 
 to make an order that such lands be vested in such person or 
 persons in such manner and for such estate as he shall direct ; 
 
1i >■ I! 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 [149] 
 
 l^f 
 
 D. & Sm. 278. 
 
 sly, is a construe- 
 
 le within the Acti 
 
 and the order shall have the sctme effect as if the trustee or 
 mortgagee had been sane, and had duly executed a conveyance 
 or assignment of the lands in the same manner for the same 
 estate. 
 
 The Court of Chancery of Ontario possesses the like jurisdiction over lunatics 
 and their property which is conferred in England upon the Lord Chancellor by a 
 commission from the Crown under the sign manual, K. S. O., c. 40, s. 58. It 
 seems to be doubtful, however, whether the Canadian Act confers upon the Court 
 any jurisdiction over lunatics or their property which the Lord Chancellor in Eng- 
 land exercises by virtue of any Imperial Statute passed subsequently to 1846. If 
 this statutory jurisdiction be excluded, then of course, the Court of Chancery of 
 Ontario cannot exercise the powers conferred on the Lord Chancellor by sections 
 3, 4, .5, and 6 of thii Act, see re Waugh, 2 D. M. & G. 27!) ; re Pattinson, 21 L. J. 
 Ch. 280. 
 
 Where the fact of lunacy is contested, the case, it is said, is not within the Act, 
 re Walker, Cr. & Ph. 147 ; re Campbell, 18 L. T. 202 ; but see section .52. 
 
 The Court has no jurisdiction under this section to vest a power, re Porter, 3 
 W. R., 583. 
 
 Where the person is of unsound mind, but not so found by inquisition, and is an 
 infant, the case comes within the ordinary jurisdiction of the Court of Chancery, 
 and not the Lunacy jurisdiction of the Lord Chancellor, re Arrowsniith, 4 Jur. 
 N. S. 1123. 
 
 4. And be it enacted, that when any lunatic or person of un- 
 sound mind shall be entitled to any contingent right in any lands 
 upon any trust or by way of mortgage, it shall be lawful for 
 the Lord Chancellor, intrusted, as aforesaid, to make an order 
 wholly releasing such lands from such contingent right, or dis- 
 posing of the same to such person or ]:)er.son.s as the said Lord 
 Chancellor shall direct ; and the order shall have the same 
 effect as if the trustee or mortgagee had been sane and had duly 
 executed a deed so releasing or disposing of the contingent 
 right. 
 
 See note to preceding section. 
 
 5. And be it enacted, that when any lunatic or person of 
 unsound mind shall be solely entitled to any stock or to any 
 chose in action upon any trust or by way of mortgage, it shall 
 be lawful for the Lord Chancellor, intrusted as aforesaid to 
 make an order vesting in any person or persons the right to 
 transfer such stock, or to receive the dividends or income 
 thereof, or to sue for and recover such chose in action, or any 
 interest in respect thereof; and when any person or persons 
 shall be entitled jointly with any lunatic or person of mind to 
 any stock or cho.se in action upon any trust or by way of mort- 
 gage, it shall be lawful for the said Lord Chancellor to make 
 an order vesting the right to transfer such stock, or to receive 
 the dividends or income thereof, or to sue for and recover such 
 chose in action, or any interest in respect thereof, either in such 
 person or persona so jointly entitled as aforesaid, or in such last 
 
 ? : \:. 
 
[150] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 mentioned person or persons together with any other person 
 or persons the said Lord Chancellor may appoint. 
 
 See note to Section 3. 
 
 ■"S. And be it enacted, that when any stock shall be standing 
 i'! Ci~: name of any deceased person whose personal representa- 
 tive is a lunatic or person of unsound mind, or when any chose 
 In acticTi shall be vested in any lunatic or person of unsound 
 mu. 1 af .,xie personal represntative of a deceased person, it 
 shall be lawful for the Lord Chancellor, intrusted as aforesaid, 
 to make an order vesting the right to transfer such stock, or 
 to receive the dividends or income thereof, or to sue for aud 
 recover such chose in action, or any interest in respect thereof, 
 in any person or persons he may appoint. 
 
 See note to Section 3. 
 
 7. And be it enacted that, where any infant shall be 
 seised or possessed of any lands upon any trust or by way of 
 mortgage, it shall be lawful for the Court of Chancery to make 
 an order vesting such lands in such person or persons in such 
 manner and for such estate as the Court shall direct ; and the 
 order shall have the same effect as if the infant trustee or 
 mortgagee had been twenty-one years of age, and had duly 
 executed a conveyance or assignment of the lands in the same 
 manner for the same estate. 
 
 The word " seised " includes an estate tail, re Sherrard, 1 D. J. & S. 422 ; and see 
 Powell V. Matthews, 1 Jur. N. S. 973. 
 
 Upon the death of a bare trustee of any corporeal or incorporeal hereditament, 
 of which such trustee was seised in fee simple, such hereditaments now vest in the 
 legal personal rejjresentative from time to time of such trustee, R. S. O., c. 107, s. 5. 
 For meaning of the expression "bare trustee," see Christie v. Ovington, L. R. 1 Ch. 
 D. 281; Morgan v. Swansea, L. R. 9 Ch. D. 582. The R. S. O., c. 107, s. 5, differs 
 from the English Land Transfer Act, 1875, s. 48, the latter being confined to trust 
 estates, whereof the bare trustee dies intestate. Under the Revised Statute the 
 power of a bare trustee to devise the trust would appear to be taken away. 
 
 The personal representatives of a deceased mortgagee have now power to dis- 
 charge the mortgage, or to reconvey or transfer the mortgaged estate, R. S. 0., c. 
 107, ss. 15, 16 ; but see Dilk v. Douglas, 26 Gr. 99. 
 
 An order vesting the legal estate of an infant remainderman in tail, made with 
 the consent of the tenant for life as protector of the settlement, will bar the entail, 
 Powell V. Matthews, 1 Jur. N. S. 973; for form of order, see Seton, 809; and see 
 Hargreaves i'. Wright, 1 W. R. 408 ; Singleton v. Hopkins, 4 W. R. 107 ; re Bloomar, 
 2 D. & J. 88 : 2 David. Con. 214, n; re Ellerthorpe, 18 Jur. 669. 
 
 Wherever for any reason a conveyance is required, the Court, in lieu of making 
 a vesting order has power to appoint some person to execute a conveyance, see post 
 section 21. 
 
 8, And be it enacted, that where any infant shall be entitled 
 to any contingent right in any lands upon any trust or by 
 way of mortgage, it shall be lawful for the Court of Chancery 
 
'f« 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 [151] 
 
 to make an order wholly releasing such lands fiom such con- 
 tingent right, or disposing of the same to such person or per- 
 sons as the said Court shall direct ; and the order shall have the 
 same effect as if the infant had been twenty-one years of age, 
 and had duly executed a deed so releasing or disposing of the 
 contingent right. 
 
 See notes to section 7. 
 
 & S. 422 ; and see 
 
 9. And be it enacted, that when any person solely seised or 
 possessed of any lands upon any trust shall be out of the juris- 
 diction of the Court of Chancery, or cannot be found, it shall 
 be lawful for the said Court to make an order vesting such 
 lands in such person or persons in such manner and for such 
 estate as the said Court shall direct ; and the order shall have 
 the same effect as if the trustee had duly executed a convey- 
 ance or assignment of the lands in the same manner and for 
 the same estate. 
 
 When there are joint trustees see section 10. 
 
 A coparcener who has no beneficial interest but holds in trust for the other co- 
 parcener is solely seised as a trustee for such coparcener, McMurray v. Spicer, L. 
 R. 5 Eq. 527. A mortgagee is not a trustee within this section, re Osborn, L. R. 
 12 Eq. 392. But a mortgagee may become a trustee within the Act, see re 
 Underwood, 3 K. & J. 745 ; )'e Crowe, L. R. 13 Eq. 26. An heir on whom trust 
 estates descend by reason of the disclaimer of the devisees in trust is a trustee 
 within this section, Wilks v. Groom, 6 D. M. & G. 205 ; Hooper v. Strutton, 12 
 W. R. 367 ; and an heir of a mortgagee who had taken possession was held to be 
 tnistee for the mortgagee's executors, re Skitter, 4 W. R. 791 ; and see re Hodges, 
 1 Gr. 285. 
 
 An absconding mortgagor was declared a trustee for his equitable mortgagee 
 after a decree for foreclosure, and an order was made vesting in the latter the legal 
 estate, Lechmere v. Clamp, 31 Beav. 578 ; S. G. 30 Beav. 218 ; Smith v. Boucher, 
 1 Sm. & G. 72 ; re Underwood, 3 K. & J. 745. 
 
 The heir of a vendor who had contracted to sell an estate and subsequently died 
 intestate before conveyance, was held to be a trustee for the personal representa- 
 tive, re Badcock, 2 W. R . 386 ; and see re Lowry, L. R. 15 Eq. 78 ; but under such 
 circumstances the heir is not trustee for the purchaser unless so declared by a decree 
 of the Court, re Carpenter, 1 Kay, 418 ; and see Lysaght v. Edwards, L. R. 2 Ch. 
 D. 499 ; Christie v. Ovington, L. R. 1 Ch. D. 281 ; Morgan v. Swansea, L. R. 9 Ch. 
 D. 582. 
 
 A temporary absence, e.g. a sailor absent on a vovage is not within the Act, 
 Hutchinson v. Stephens, 5 Sim. 499. Where the absent trustee was lunatic it was 
 held the Court of Chancery had jurisdiction to appoint a new trustee in his stead 
 re Gardner, L. R. 10 Ch. D. 29. 
 
 10. And be it enacted, that when any person or persons 
 shall be seised or possessed of any lands jointly with a person 
 out of the jurisdiction of the Court of Chancery, or who can- 
 not be found, it shall be lawful for the said Court to make an 
 order vesting the lands in the person or persons so jointly 
 seised or possessed, or in such last-mentioned person or persons, 
 together with any other person or persons, in such manner and 
 
ii! 
 
 
 
 IS 
 
 %iii 
 
 il 
 i 
 
 [152] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 for such estate as the said Court shall direct; and the order 
 shall have the same effect as if the trustee out of the jurisdic- 
 tion, or who cannot be found, had duly executed a conveyance 
 or cidsignment of the lands in the same manner for the same 
 estate. 
 
 The words " upon any trust " seem to have been accidentally omitted after the 
 word "lands" in the second line. 
 
 A mortgagee is not a trustee within the section, see re Osbom, L. R. 12 Eq. 392, 
 Where one of several trustees is out of the jurisdiction, and a new trustee is 
 appointed in his place, the Court will vest the outstanding legal estate in the con- 
 tmuing and new trustee as joint tenants, Smith v. Smith, 3 Drew. 72 ; re Fisher, 1 W. 
 R. 505 ; overruling, re Watts, 9 Ha. 106 ; re Plyer, 9 Ha. 220. Even though the new 
 trustee is not appointed by the Court, re Marquis of Bute's will, Johns. 15. As to 
 power of Court to order a conveyanc in lieu of making a vesting order, see post 
 section 21. 
 
 A temporary absence is not within the Act, Hutchinson v, Stephens, 5 Sim. 499. 
 cited supra. 
 
 11. And be it enacted, that when any person solely entitled 
 to a contingent right in any lands upon any trust, shall be out 
 of the jurisdiction of the Court of Chancery, or cannot be 
 found, it shall be lawful for the said Court to make an order 
 wholly releasing such lands from such contingent right, or dis- 
 posing of the same to such person or persons as the said Court 
 shall direct; and the order shall have the same effect as if the 
 trustee had duly executed a conveyance so releasing or dispos- 
 ing of the contingent right. 
 
 The Court has power to appoint a person to execute a conveyance releasing such 
 contingent right, in lieu of making an order under this section, see post section 21. 
 
 l^. And be it enacted, that when any person jointly entitled 
 with any other person or persons to a contingent right in any 
 lands upon any trust shall be out of the jurisdiction of the Court 
 of Chancery, or cannot be found, it shall be lawful for the said 
 Court to make an order disposing of the contingent right of 
 the person out of the jurisdiction, or who cannot be found, to 
 the person or persons so jointly entitled as aforesaid, or to such 
 last mentioned person or persons together with any other per- 
 son or persons ; and the order shall have the same effect as if 
 the trustee out of the jurisdiction, or who cannot be found, had 
 duly executed a conveyance so releasing or disposing of the 
 contingent right. 
 
 1 3. And be it enacted, that where thej i?; shall have been 
 two or more persons jointly seised or possessed of any lands 
 upon any trust, and it shall be uncertain which of such trustees 
 was the survivor, it shall be lawful for the Court of Chancery 
 to make an order vesting such lands in such person or persons 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [153] 
 
 in such manner and for such estate as the said Court shall 
 direct ; and the order shall have the same effect as if the sur- 
 vivor of such trustees had duly executed a conveyance or assign- 
 ment of the lands in the same me,nner for the same estate. 
 
 V. 
 
 t 
 
 tted after the 
 
 ns, 5 Sim. 499. 
 
 14. And be it enacted, that where any one or more person 
 or persons shall have been seised or possessed of any lands 
 upon any trust and it shall not be known, as to the trustee 
 last known to have been seised or possessed, whether he be 
 living or dead, it shall be lawful for the Court of Chancery to 
 make an order vesting such lands in such person or persons in 
 such manner and for such estate as the said Court shall direct; 
 and the order shall have the same effect as if the last trustee 
 had duly executed a conveyance or assignment of the lands in 
 the same manner for the same estate. 
 
 15. And be it enacted, that when any person seised of any 
 land, upon any trust, shall have died intestate as to such lands 
 without an heir, or shall have died and it shall not be known 
 who is his heir or devisee, it shall be lawful for the Court of 
 Chancery to make an order vesting such lands in such person 
 or perscms in such manner and for such estate as the said Court 
 shall direct ; and the order shall have the same effect as if the 
 heir or devisee of such trustee had duly executed a conveyance 
 of the lands in the same manner for the same estate. 
 
 Leaseholds are not within this section, re Mundell, 8 W. R. 083 ; re Harvey, 
 Seton ;3rd ed.) 819 ; but a vesting order of leaseholds may be made on the appoint- 
 me»io of new trustees under section 34. 
 
 Trust estates held by "bare trustees" now pass to their personal representa- 
 tives, see R. S. O. , c. 107, a. o. As to the meaning of the expression ' ' bare 
 trustees," see Christie v. Ovington, L. R. 1 Ch. D. 281 ; Morgan v. Swansea, L. 
 R. 9Ch. D. 582. 
 
 When a mortgagee had entered into possession and died, leaving an heir out of 
 the jurisdiction, a vesting order was made under the 9th section in favour of the 
 executors of the djceased mortgagee, re Skitter, 4 W. R. 791 ; but when the 
 mortgagee left no heir a vesting order in favour of the mortgagee's personal repre- 
 sentative was marie under this section, re Keeler, 11 W. R. 62 ; but see re Hodges, 
 1 6r. 285 ; and as to right of the personal representative of a deceased mortgagee 
 over mortgaged estates, see R. S. O., c. 107, ss. 15, 16. 
 
 16. And be it enacted, that when any lands are subject to 
 a contingent right in an unborn person or class of unborn 
 persons who upon coming into existence would in respect 
 thereof become seized or possessed of such lands upon any 
 trust, it shall be lawful for the Court of Chancery to make an 
 order which shall wholly release and discharge such lands from 
 such contingent right in such unborn person or class of unborn 
 persons, or to make an order which shall vest in any person or 
 persons the estate or estates which such unborn person or class 
 
 
 H- 
 
[154] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 of unborn persons would upon coming into existence be seised 
 or possessed of in such lands. 
 
 See note to Section 30. 
 
 !* 
 
 [17 and 18. Repealed by the Trustee Extension Act, 1852, 
 s. 2, and were consequently never in operation in Ontario.] 
 
 19. And be it enacted, that when any person to whom any 
 lands have been conveyed by way of mortgage shall have died 
 without having entered into the possession or into the receipt 
 of the rents and profits thereof, and the money due in respect of 
 such mortgage shall have been paid to a person entitled to re- 
 ceive the same, or such last mentioned person shall consent to an 
 order for the reconveyance of such lands, then, in any of the fol- 
 lowing cases,it shall be lawful for the Court of Chancery to make 
 an order vesting such lands in such person or persons in such 
 manner and for such estate as the said Court shall direct ; that 
 is to say. 
 
 When an heir or devisee of such mortgagee shall be 
 out of the jurisdiction of the Court of Chancery, or 
 cannot be found : 
 
 When an heir or devisee of such mortgagee shall upon 
 a demand by a person entitled to require a convey- 
 ance of such lands, or a duly authorized agent of 
 such last mentioned person, have stated in writing 
 that he will not convey the same, or shall not con- 
 vey the same for the space of twenty-eight days 
 next after a proper deed for conveying such lands 
 shall have been tendered to him by a person enti- 
 tled as aforesaid, or a duly authorized agent of such 
 last mentioned person : 
 
 When it shall be uncertain which of several devisees of 
 such mortgagee was the survivor: 
 
 When it shall be uncertain as to the survivor of several 
 devisees of such mortgagee, or as to the heir of such 
 mortgagee whether he be living or dead : 
 
 When such mortgagee shall have died intestate as to 
 such lands, and without an heir, or shall have 
 died and it shall not be known who is his heir or 
 devisee : 
 
^ 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 [165] 
 
 And the order of the said Court of Chancery made in any 
 one of the foreof'^'ng cases shall have the same effect as if the 
 heir or devisee, ^^ ' surviving devisee (as the case may be), had 
 duly executed a conveyance or assignment of the lands in the 
 same manner and for the same estate. 
 
 See R. S. O. c. 107. ss. 15, 10, as to power of the personal representative over 
 the mortgaged estate, Dilk z; Douglas, 2U Gr. 99. 
 
 When the mortgagee had entered into possession and died leaving an heir, resi- 
 dent out of t)>e jurisdiction, an order vesting the legal estate in the personal 
 representative of the mortgagee was made under sec. 9, re Skitter, 4 W. R. 791 ; 
 and when the mortgagee left no heir, an order vesting the mortgaged estate in the 
 personal representative of the deceased mortgagee was made under Sec. 15, rt 
 Keeler, 11 W. R. 02. But see re Hodges, 1 Gr. 285. 
 
 An order will be made imder this section vesting the legal estate in the personal 
 representatives of the deceased mortgagee who had not taken possession, notwith- 
 standing the mortgage debt has not been paid, re Boden, 9 Ha. 820 ; 1 D; M. & G. 
 57 ; re Hewitt, 27 L. J. Ch. 302 ; re Lea, W. R. 482 ; or in favour of an assignee 
 of the personal representative of the mortgagee, re Quinlan, 9 Ir. Ch. R. 300 ; over- 
 ruling, re Meyrick, 9 Ha. 116 ; and see re Dearden, 3 M. & K. .508. 
 
 Trust property does not escheat to the Crown, see 2}ost sec. 46. 
 
 As to the meaning of the word " devisee " see interpretation clause, s. 2. 
 
 "40. And be it enacted, that in every case where the Lord 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, 
 shall under any of the provisions of this Act, be enabled to 
 make an order having the effect of a conveyance or assign- 
 ment of any lands, or having the effect of a release or disposi- 
 tion of the contingent right of any person or persons, born or 
 unborn, it shall also be lawful for the Lf^rd Chancellor, in- 
 trusted as aforesaid, or the Court of Chane ry (as the case may 
 be), should it be deemed more convenient, to make an order 
 appointing a person to convey or assign such lands, or release 
 or dispose of such contingent right ; and the conveyance or 
 assignment, or release or disposition, of the person so appoint- 
 ed, shall, when in conformity with the terms of the order by 
 which he is appointed, have the same effect in conveying or 
 assigning the lands, or releasing or disposing of the contingent 
 right, as an order of the Lord Chancellor, intrusted as afore- 
 said, or the Court of Chancery, would in the particular case 
 have had under the provisions of this Act ; and in every case 
 where the Lord Chancellor, intrusted as aforesaid, or the Court 
 of Chancery shall, under the provisions of this Act, be enabled 
 to make an order vesting in any person or persons the right 
 to transfer any stock, transferable in the books of the Gover- 
 nor and Company of the Bank of England, or of any company 
 or society established, or to be established ; it shall also be 
 lawful for the Lord Chancellor, intrusted as aforesaid, or the 
 Court of Chancery, if it be deemed more convenient, to make 
 an order directing the secretary, deputy secretary or account- 
 
[156] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 i •'• 
 
 ant-general for the time being of the Governor and Company 
 of the Bank of England, or any officer of such other ccmpany 
 or society at once to transfer or join in transferring the stock 
 to the person or persons to be named in the order ; and this 
 Act shall be a full and complete indemnity and discharge to 
 the Governor and Company of the Bank of England, and all 
 other companies or societies and their officers and servants, for 
 all acts done or permitted to be done pursuant thereto. 
 
 When a vesting order had been granted, it was subsequently vacated and a con- 
 veyance ordered for the purpose of expi-essing reservations as to mines, Tui •'r v, 
 Speakman, Seton, (4th en.) 534. 
 
 The conveyance under this section should contain a recital shewing t 's 
 
 made in obedience to the order of the Court and should be executed by tl . it 
 cppointed to convey in iiis own name, Lewin (tith ed. ) 85(J, but see Ex parte Foley, 8 
 Sim '^'X^ ; and for form of order Hancox v. Spittle, 3 Sm. & G. 478 ; Shepherd v, 
 ChurchiU, 25Beav. 21. , 
 
 [31. Relates to lands in Lancaster and Durham.] 
 
 33. And be it enacted, that when any person or persons 
 shall be jointly entitled with any person out of the jurisdiction 
 of the Court of Chancery, or who cannot be found, or concern- 
 ing whom it shall be uncertain whether he be living or dead, 
 to any stock or chose in action upon any trust, it shall be law- 
 ful fi)r the said Court to make an order vesting the right to 
 transfer such stock, or to receive the dividends or income 
 thereof, or to sue for or recover such chose in action, or any in- 
 terest in respect thereof, either in such person or persons so 
 jointly entitled as aforesaid, or in such last mentioned person 
 or persons together with any person or persons the said Court 
 may appoint ; and when any sole trustee of any stock or chose 
 in action shall be out of the jurisdiction of the said Court, or 
 cannot be found, or it shall be uncertain whether he be living 
 or dead, it shall be lawful for the said Court to make an order 
 vesting the right to transfer such stock, or to receive the 
 dividends or income thereof, or to sue for and recover such 
 chose in action, or any interest in respect thereof, in any per- 
 son or persons the said Court may appoint. 
 
 See sections 9, 10, 14, which confer similar powers on the Court in respect to 
 lands. 
 
 Where there are several trustees, one of whom is out of the jurisdiction, the Court 
 cannot for that reason vest the chose in action in the cestui que trust alone, even 
 though he be absolutely entitled, re Brass, 4 W. R. 764. But where all the trustees 
 were dead an order was made vesting stock in the cestui que trust who was absolutely 
 entitled, re Ryan, 9 W. R. 137 ; and see ex parte Bradshaw, 2 D. M. & G. 900; 
 but the authority of re Ryan is questioned, see Lewin (6th ed.) p. 858, note (d). 
 
 Where one of four trustees was out of the jurisdiction an order was made vest- 
 ing in the other three the right to receive the dividends accruing during their lives, 
 re Peyton, 2D. & J. 290 ; 25 Beav. 317. 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [157] 
 
 Where B, one of tvo truut'ces, wras dead but the Master found that it was un- 
 certain whether A, the other f^intee was living or dead, the Court refused to treat 
 A as a sole trustee under the 22iid section, it being uncertain whether he survived 
 B, re Randall, 1 Drew. 401. 
 
 The order should recite the fact by reason of which the order is made, e.g., the 
 absence of the trustee from jurisdiction, ?'c Mainwaring, 20 Beav. 172. 
 
 This section does not apply where the absent trustee is an infant or lunatic. 
 Cramer V. Cramer, 5 D. & S. 312; but see "Trustee Extension Act, 1852," s. 3 
 post. 
 
 W 
 
 33. And be it enacted, that where any sole trustee of any 
 stock or chose in action shall neglect or refuse to transfer such 
 stock, or to receive the dividends or income thereof, or to sue 
 for or recover such chose in action, or any interest in respect 
 thereof, according to the direction of the person absolutely 
 entitled thereto for the space of twenty-eight days next after 
 a request in writing for that purpose shall have been made to 
 him by the person absolutely entitled thereto, it shall be law- 
 ful for the Court of Chancery to make an order vesting the 
 sole right to transfer such stock, or to receive the dividends or 
 income thereof, or to sue for and recover such chose in action, 
 or any interest in respect thereof, in such person or persons as 
 the Court may appoint. 
 
 It'has been held that this section applies not only to the case of a sole trustee, 
 but also to the case of several trustees who all refuse to comply with a written re- 
 quest to receive dividends, etc., re Hartnall, 5 D. & S. 111. Where the application 
 is made in consequence of a refusal on the part of the trustees to receive dividends, 
 the Court has only jurisdiction to make an order affecting dividends accrued prior 
 to the delivery of the written request to the trustees, and has no jurisdiction over 
 the future dividends, re Hartnall, 5 D. & S. 111. 
 
 See," Trustee Extension Act, 1852," s. 4, post, which extends the power of the 
 Court to make orders vesting stock, etc., in cases where the trustee refuses to obey 
 the order of the Court. 
 
 Duly appointed new trustees of the stock sought to be transferred are persons 
 absolutely entitled, re Russell, 1 Sim. N. S. 404 ; re Baxter, 2 Sm. & G. app. 5 ; 
 re Ellis, 24 Beav. 426 ; but a tenant for life is not, except for the purpose of an ap- 
 plication limited to the income ; nor is one of two trustees, Mackenzie [v, Mac- 
 kenzie, 5 D. & S. 338. 
 
 The refusing trustee need not be served, re Baxter, supra ; ex parte Armstrong, 
 16 Sim. 296 ; re Crowe, L. R. 13 Eq. 26. 
 
 34. And be it enacted, that where any one of the trustees 
 of any stock or, chose in action shall neglect or refuse to trans- 
 fer such stock, or to receive the dividends or income thereof, 
 or to sue for or recover such chose in action according to the 
 directions of the person absolutely entitled thereto, for the 
 space of twenty-eight days next after a request in writing for 
 that purpose shall have been made to him or her by such per- 
 son, it shall be lawful for the Court of Chancery to make an 
 order vesting the right to transfer auch stock, or to receive the 
 dividends or income thereof, or to sue for and recover such 
 
 if if I , 
 
 ; ! 
 
'I ., 1 
 
 nr 
 
 I' 
 
 i '■} 
 
 r 1: 
 
 ■•'Hi; 
 
 %] 
 
 \i/.i 
 
 m 
 
 
 ! M*t 
 
 V; 
 
 ef il 
 
 11 
 
 i: Mi ; 
 
 [158] 
 
 ENGLISH TEUSTEE ACT, 1850. 
 
 chose in action, in the other trustee or trustees of the said stock 
 or chose in'action, or in any person or persons whom the said 
 Court may appoint jointly with such other trustee or trustees. 
 
 The refusal of two out of three executors to transfer stock, does not give the 
 Court jurisdiction to vest the rights of the trustees in the person beneficially 
 entitled, re Nicholls, 18 W, R. 443 ; even though the third trustee be a lunatic, lb. 
 Where the application is made on the ground of a refusal to receive dividends, it 
 would seem that the Court has no power to make any order, except as to dividends 
 acrued prior to the making of the written request, re Hartnall, 5 D. & S. Ill . 
 
 Where one of three executors of a surviving trustee of canal share became 
 lunatic and the other two refused to act, an order was made under this section vest- 
 ing the shares in the parties beneficially entitled, re White, L. 11. 5 Ch. App. 698. 
 
 35. And he it enacted, that when any stock shall be stand- 
 ing in the sole name of a deceased person, and his or her per- 
 sonal representative shall be out of the jurisdiction of the Court 
 of Chancery, or cannot be found, or it shall be uncertain 
 whether such personal representative be living or dead, or such 
 personal representative shall neglect or refuse to transfer such 
 stock, or receive the dividends or income thereof, according to 
 the direction of the person absolutely entitled thereto, for the 
 space of twenty-eight days next after a request in writing for 
 that purpose shall have been made to him by the person 
 entitled as aforesaid, it shall be lawful for the Court of Chan- 
 cery to make an order vesting the right to transfer such stock, 
 or to receive the dividends or income thereof, in any person or 
 persons whom the said Court may appoint. 
 
 Where the executor ■ )f a surviving trustee has not proved, and declines to say 
 whether he intends doing so, and has neglected to transfer, order may be made 
 nnder this section, re Ellis, 24 Beav. 426 ; Cockell v, Pugh, 6 Beav. 293 ; re Lunn, 
 15 Sim. 464. Where the survivor of two trustees died, leaving no personal repre- 
 sentative, the person beneficially entitled was appointed trustee under this section, 
 re Dixon, 21 W. II. 220; re Kadeheim, Blake, V. C, 6 November, 1878; and see re 
 Kathbone, L. R. 2 Ch. D. 483, as to form of vesting order of personalty, where 
 there is no personal representative of the deceased trustee, see also re Dalgleish, L. 
 R. 4 CI; . D, 143. And where the survivor of two trustees of stock under a will died 
 intestate, and no personal representative had been appointed to his estate, on the 
 application of the cestui que trust and two new trustees who had been appointed 
 under the will, praying that the right to transfer the stock might be vestea in the 
 latter, the Master of the Rolls held it necessary that the new trustees should 
 formally retire and be re-appointed by the Court, and that thereupon the right to 
 a transfer could be vested in tham. This was done by an order, re Crowe, 42 L. T. 
 N. S. 822. 
 
 36. And be it enacted, that where any order shall have 
 been made under the provisions of this Act, vesting the right 
 to any stock in any person or persons appointed by the Lord 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, 
 such legal right shall vest accordingly, and thereupon the per- 
 son or persons so appointed are hereby authorized and em- 
 powered to execute all deeds and powers of attorney, and to 
 perform all acts relating to the transfer of such stock into his 
 
 PW 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [159] 
 
 said stock 
 n the said 
 r trustees. 
 
 not give the 
 beneficially 
 
 a lunatic, lb. 
 
 dividends, it 
 
 to dividends 
 S. 111. 
 
 lare-f became 
 section vest- 
 App. 698. 
 
 be stand- 
 r her per- 
 the Court 
 uncertain 
 id, or such 
 isfer such 
 ording to 
 ;o, for the 
 riting for 
 le person 
 of Chan- 
 ich stock, 
 person or 
 
 dines to say 
 lay be made 
 )3 ; re Lunn, 
 rsonal repre- 
 this section, 
 ! ; and see re 
 lalty, where 
 Jalgleish, L. 
 r a will died 
 itate, on the 
 n appointed 
 estea in the 
 tees should 
 the right to 
 ve, 42 L. T. 
 
 all have 
 he right 
 the Lord 
 hancery, 
 the per- 
 md em- 
 ^ and to 
 into his 
 
 i 
 
 or their own name or names or otherwise, or relating to the 
 receipt of the dividends thereof, to the extent and in con- 
 formity with the terms of such order: and the Bank of England, 
 and all companies and associations whatever, and all persons 
 shall be equally bound and compellable to comply with 
 the requisitions of such person or persons so appointed as 
 aforesaid, to the extent and in comformity with the terms of 
 such order as the said Bank of England, or such companies, 
 associations, or persons, would have been bound and compella- 
 ble to comply with the requisitions of the person in whose 
 place such appointment shall have been made, and shall be 
 equally indemnified in complying with the requisition of 
 such person or persons so appointed as they would have been 
 indemnified in complying with the requisition of the person in 
 whose place such appointment shall have been made ; and after 
 notice in writing of any such order of the Lord Chancellor, 
 intrusted as aforesaid, or of the Court of Chancery, concerning 
 any stock, shall have been given, it shall not be lawful for the 
 Bank of England, or any company or association whatever, 
 or any person having received such notice, to act upon the 
 requisition of the person in whose place an appointment shall 
 have been made in any matter whatever relating to the 
 transfer of such stock, or the payment of the dividends or 
 produce thereof. 
 
 An order vesting the right to transfer a fractional part of a dividend of stock 
 was varied on the appeal of the Bank, and the new trustees were empowered to 
 receive the whole of the dividends, and were directed to retain only such part as 
 was subject to the trust, re Stewart, 8 W. R. 425. 
 
 37. And be it enacted, that where any order shall have 
 been made under the provisions of this Act, either by the 
 Lord Chancellor, intrusted as aforosaid, or by the Court of 
 Chancery, vesting the legal right to sue for or recover any 
 chose in action, or any interest in respect thereof in any per- 
 son or persons, such legal right shall vest accordingly, and 
 thereupon it shall be lawful for the person or persons so ap- 
 pointed to carry on, commence and prosecute, in his or their 
 own name or names, any action, suit, or other proceeding at 
 law or in equity, for the recovery of such chose in action, in 
 the same manner in all respects as the person in whose place 
 an appointment shall have been made could have sued for or 
 recovered such chose in action. 
 
 [38, Relates to copyhold lands.] 
 
 29. And be it enacted, that when a decree shall have been 
 made by any Court of Equity, directing the sale of any lands 
 
 'r' 
 
[160] 
 
 ENGLISH TRUSTEE ACT, :.S50. 
 
 [ ■ n 
 
 ■:? iH 
 
 ! !! 
 
 for the payment of the debts of a deceased person, every per- 
 son seised or possessed of such lands, or entitled to a contingent 
 right therein, as heir, or under the will of such deceased debtor, 
 shall be deemed to be so seised, or possessed, or entitled, as the 
 case may be, upon a trust within the meaning of this Act; 
 and the Court of Chancery is hereby empowered to make an 
 order wholly discharging the contingent right, under the will 
 of such deceased debtor, of any unborn person. 
 
 A sale for costs of suit is not within this section, Weston v. Tiler, 5 D. & Sm. 
 608 ; but see " Trustee Extension Act," 1852, s. 1, which extends the provisions of 
 this section to sales under decrees or orders " for any purpose whatever," Wake v. 
 Wake, 17 Jur. 545. 
 
 Such an order was made without petition in Wood v. Beetlestone, 1 K. & J. 213 ; 
 but see Gough v. Bage, W. N. (1871) p. 237. 
 
 30. And be it enacted, that where any decree shall be made 
 by any Court of Equity for the specific performance of a con- 
 tract concerning any lands, or for the partition or exchange 
 of any lands, or generally when any decree shall be made 
 for the conveyance or assignment of any lands, either in cases 
 arising out of the doctrine of election or otherwise, it shall 
 be lawful for the raid Court to declare that any of the 
 parties to the said suit wherein such decree is made are trus- 
 tees of such lands or any part thereof, within the meaning of 
 this Act, or to declare concerning the interests of unborn persons 
 who might claim under any party to the said suit, or under 
 the will or voluntary settlement of any person deceased, who 
 was during his lifetime, a party to the contract or transactions 
 concerning which such decree is made, that such interests of 
 unborn persons are the interests of persons who upon coming 
 into existence would be trustees within the meaning of this 
 Act ; and thereupon it shall be lawful for the Lord Chancellor, 
 intrusted as aforesaid, or the Court of Chancery, as the case 
 may be, to make such order or orders as to the estates, rights 
 and interests of such persons, born or unborn, as the said Court 
 or the said Lord Chancellor might, under the provisions of this 
 Act, make concerning the estates, rights, and interest of trus- 
 tees born or unborn. 
 
 See Extension Act. sec. 1, which extends to any order of the Court. 
 
 Orders under this section may be made in suits without any separate proceeding 
 under the Act, Harrison v. Smith, 17 W. R. 646 ; thus in partition suits an infant 
 entitled to a share, may be declared a trustee of such parts of the property as are 
 allotted to other parties, Bowra v. Wright, 4 D. & S. 265 ; so where the shares were 
 minute and complicated the Court declared each of the parties trustees as to the 
 shares allotted to the other of them, and vested the whole in a single tinistee with 
 directions to convey to each of the parties their allotted shares. Shepherd v. Church- 
 ill, 25 Beav. 21 ; and see Orger v. Sparke, 9 W. R. 180 ; and Hubbard v. Hubbard, 
 2 H. & M. 38 ; so in a foreclosure suit by an equitable mortgagee by deposit, the 
 Court on making absolute a decree niti for foreclosure directed a conveyance and 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [161] 
 
 ivery per- 
 ontingcnt 
 ed debtor, 
 led, as the 
 this Act; 
 make an 
 ir the will 
 
 5 D. & Sm. 
 provisions of 
 er," Wake v, 
 
 LK.&J. 213; 
 
 [1 be made 
 5 of a con- 
 exchange 
 be made 
 jr in cases 
 le, it shall 
 ly of the 
 e are trus- 
 neaning of 
 rn persons 
 or under 
 lased, who 
 ansactions 
 terests of 
 on coming 
 111! of this 
 lancellor, 
 the case 
 ies, rights 
 said Court 
 ons of this 
 ,t of trus- 
 
 ,te proceeding 
 its an infant 
 •operty as are 
 e shares were 
 ees as to the 
 f.-ustee with 
 rd V. Church- 
 V. Hubbard, 
 deposit, the 
 veyance and 
 
 added a declaration that the mortgagor was a trustee for the plaintiff, and made an 
 order vesting his interest in the plaintiff, Lechmere v. Clamp, 30 Beav. 218 ; S. C. 
 31 Beav. 578 ; but in another case the Court required a separate application to be 
 made, Smith v. Boucher, 1 Sm. & G. 72. 
 
 Under R. S. O., c. 40, s. 101, the Court has power to make a vesting order 
 wherever it has authority to order the execution of a conveyance. 
 
 The Court has power to declare a person to be a constructive trustee, by ordv^r 
 on petition, and to make an order vesting his interest, without suit, re Angelo, 5 D. 
 & Sm. 278, where a mortgagor of shares, resident out of the jurisdiction, was 
 on the petition of the purchaser thereof from the mortgagor, declared a construct- 
 ive trustee for such purchaser. So where a contract for sale of land is executed, by 
 payment of the purchase money, the vendor's heir was declared a trustee for the 
 purchaser without suit, re Cuming, L. R. .5 Ch. App. 72 ; and see re Crowe, L. 
 R. 13 Eq. 26 ; re Russell, 12 Jur. N. S. 224 ; re Lowry, L. R. 15 Eq. 78 ; and see 
 Lysaght v. Edwards, L. 11. 2 Ch. D. 499, where the question as to how far the 
 heir of a vendor who dies before completion is a trustee for the purchaser is fully 
 considered. 
 
 Where the equitable estate was clearly in the petitioner, the holder of the legal 
 estate was on petition declared a trustee, re Wilkinson, 12 W. R. 527. ' 
 
 But the Court has refused to make such a declaration on petition against an 
 infant heir of an alleged vendor of realty, and required the rights to be ascertained 
 by a suit, 't Carpenter, Kay 418 ; re Weeding, 4 Jur. N. S. 707 ; Cust v, Middleton 
 9 W. R. 242 ; re Draper, !) W. R. 805 ; and the Court has also refused, on a peti- 
 tion, to declare the infant heir of a deceased partner, where surviving partner 
 had exercised a right of purchasing the partnership property given him by the 
 articles of partnership, a constructive trustee for the surviving partner, re Burt, 9 
 Hare 289 ; So where jiroperty hud been purchased by a father in his son's name 
 the Court refused, on petition, to declare the son a trustee for the father, although 
 a decree was afterwards made in the suit to that effect, CoUinson v. CoUinson, 3 1). 
 M. & G. 409 ; but see re De Visme, 2D. J. & S. 17. 
 
 So also where a conveyance had been taken in the name of the manager of a 
 Bank upon a secret trust for the Bank, but the trust was not evidenced by a ■ 
 writing, the Court refused, on the petition of the Bank, to declare the infant heir 
 of the (.leceased manager to be a trustee for the Bank, and directed a bill to be 
 filed, re Greer, Vankougnet, C. May, 1808. 
 
 As to the power of the Court to bind the interests of unborn persons, see Har- 
 greaves v. Wright, 1 W. R. 408 ; where on a bill tiled by purchasers from a father 
 and son, having a joint power of appointment under a settlement, against the infant 
 heir in tail of the son, who had died before the completion of the purchase, the 
 Court made an order discharging the estate from the contingent rights of the 
 unborn claimants under the settlement, and appointed a person to convey in the 
 place of the infant. Wake v. Wake, 1 W. R. 283. The word "unborn" includes 
 right heirs of living persons, who cannot be ascertained, and therefore cannot be 
 matle parties to a suit, Basnett v. Moxon, L. R. 20 Eq. 182 ; Lees v. Coulton, lb. 20. 
 
 31. And be it enacted that it shall be lawful for the Lord 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, to 
 make declarations and give directions concerning the manner 
 in which the right to any stock or chose in action vested under 
 the provisions of this Act shall be exercised ; and thereupon 
 the person or persons in whom such right shall be vested shall 
 be compellable to obey such directions and declarations by the 
 same process as that by which orders under this Act are 
 enforced. 
 
 The Court may order a person to whom a fund is paid to pay it into Court under 
 the Trustees Relief Act, see re Thornton, 9 W. R. 475 ; re Draper, ib. 805 ; but an 
 order for payment direct into Court has been refused re Parby, 29 L. T. 72 ; see 
 however re Pitt, 1 Jur. N.S. 1155 ; re Dawscn, 3 N. R. 397. 
 
 11 
 
 i 
 
[162] 
 
 ENGLISH TRUSTEE ACT, 1860. 
 
 III '• 
 
 Ij ] 
 
 3/J. And be it enacted, that whenever it shall be expedient 
 to appoint a new trustee or new trustees and it shall be found 
 inexpedient, difficult, or impracticable so to do without the 
 assistance of the Court of Chancery, it shall be lawful for the 
 said Court of Chancery to make an order appointing a new 
 trustee or new trustees either in substitution for or in addition 
 to any existing trustee or trustees. 
 
 The Court will not upon petition consider the validity of the instrument creating 
 the trust, re Matthews, 26 Beav. 463; re Harrison, 22 L. J. 69; and see Att.-Gen. v. 
 Ward, 6 Ha. 477. Neither will the Court on petition appoint a new trustee upon 
 any ground not appearing on the face of the instrument, e.g., on the ground of the 
 trustee's misconduct, re Bridgman, 1 Dr. & Sm. 164 ; Legg v. Mackrell, 1 Giff. 
 165 ; nor iDecause of disagreements between the trustee and cestui que trust, Forster 
 V, Davies, 4 D. F. & J. 133 ; or because the donee of the power is about to exercise 
 it corruptly, re Hodson, 9 Ha. 118 ; re Hadley, .5 D. & Sm. 67 ; but where the 
 parties having the power of appointing new trustees were resident in India the 
 Court made an order, re Humphrey, 1 Jur. N. S. 921. Nor will the Court on 
 
 Petition remove a trustee without or against his consent, re Blanchard, 3 D. F. & J. 
 31 ; re Gaity, 10 L. J. N. S. 331 ; re Dennis, 12 W. R. 575. In such cases a biU 
 must be filed, but see re Byrne, 18 L. T. N. S. 630 ; re Bignold, W. N. (1872) 31. 
 
 The Court has appointed new trustees where a vesting order could not other- 
 wise have been obtained, King of Hanover v. Bank of England, L. B. 8 £q. 350 ; 
 but see re Rathbone, L. R. 2 Ch. D. 483 ; re Driver, L. R. 19 Eq. 352, where 
 vesting orders were granted, although there was no one who had an existing 
 estate or interest. New trustees have also been appointed where there was 
 great difficulty in obtaining administration to the estate of a deceased trustee, re 
 Matthews, 26 Beav. 463 ; Davis v. Chanter, 6 W. R. 416 ; 4 Jur. N. S. 272 ; so 
 also where there is no personal representative of the last surviving trustee, re 
 Davis, L. R. 12 Eq. 214. The Court will generally appoint a new trustee in the 
 place of an infant, re Porter, 2 Jur. N. S. 349; even though appointed by the 
 settler himself, re Gartside, W. N. (1866) 196 ; but the order should be without 
 prejudice to an application by the infant on his coming of age to be restored to the 
 trust, re Shelmerdine, 33 Tj. J. Ch. 474. The residence of the trustee out of the 
 jurisdiction is not always a ground for appointing another in his place, re Mais, 
 16 Jur. 6U8 ; re Moravian Society, 26 Beav. 101 ; re Watt, 9 Ha. 106 ; see re Lin- 
 coln P. Methodists, 1 Jur. N. S. 1011 ; Withington v. Withington, 16 Sim. 104. 
 
 But where the trustee was residing permanently abroad, that was held to inca- 
 
 rbcitate him from acting as trustee of property in England, Mennard v. Welford, 
 Sm. & G. 426 ; and he may, under such circumstances, be removed without his 
 consent, re Bignold, L. R. 7 Ch. App. 223 ; and when one of the trustees had 
 gone to Australia, and it was not known where he was, a new trustee was appointed 
 in his place, re Harrison, 22 L. J. Ch. 69 ; and see re Joyce, L. R. 2 Eq. 576. 
 Where the power to appoint new trustees, given in the instrument, fails to meet 
 the case which happens, the Court may act, re Woodgate, 5 W. R. 448 ; Cooper v. 
 Macdonald, 14 W. R. 755 ; Travis v. lUingworth, 2 Dr. & Sm. 345 : re Dawson, 3 
 N. R. 397 ; or where the donee of the power is lunatic, so found by inquisition, 
 the Court may appoint, re Sparrow, L. R. 6 Chan. App. 662. 
 
 Where proceedings under a bankruptcy were suspended and a trustee was 
 appointed by resolution of creditors to wmd up the estate and the trustee died, the 
 C^urt appointed a new trustee in his place, re Raphael, L. R. 9 Eq. 233 ; ana see 
 r« Price, L. R. 6 Eq. 460. 
 
 Where a trustee has become bankrupt, he may be removed and a new trustee 
 appointed in his place, re Renshaw, L. R. 4 Chan. App. 783 ; Harris v. Harris, 
 29 Beav. 107 ; but where a bankrupt had obtained a first-class certificate of dis- 
 charge, and had subsequently been appointed to positions of trust, a petition for his 
 removal on the ground of his having been bankrupt was refused, re Bridgman, 1 
 Dr. & Sm. 164. The power conferred by the English Bankrupt Act of 1849, s. 130, 
 on the Lord Chancellor to appoint new trustees in place of bankrupt trustees was 
 held to be exercisable by the Court of Chancery, see re Bridgman, 1 Dr. & Sm. 
 168-9. 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [163] 
 
 expedient 
 . be found 
 thout the 
 iul for the 
 ing a new 
 n addition 
 
 ment creating 
 )e Att.-Gen.v. 
 V trustee upon 
 
 trround of the 
 wkrell, 1 Giff. 
 e trust, Forster 
 )out to exercise 
 ; but where the 
 nt in India the 
 U the Court on 
 rd,3D.F.&J- 
 luch cases a bill 
 
 N. (1872) 31. 
 
 could not other- 
 j. R. 8 Eq. 350 ; 
 Eq. 352, where 
 lad an existing 
 rhere there was 
 eased trustee, re 
 r. N. S. 272 ; so 
 iving trustee, re 
 [f trustee in the 
 ppointed by the 
 ould be without 
 le restored to the 
 ustee out of the 
 J place, re Mais, 
 L06 ; see re Lin- 
 1, 16 Sim. 104. 
 
 was held to inca- 
 nard v. Welford, 
 oved without his 
 the trustees had 
 ;ee was appointed 
 L. R. 2 Eq. 576. 
 nt, fails to meet 
 I. 448 ; Cooper v. 
 ~ • re Dawson, i 
 by inquisition, 
 
 (5 
 
 nd a trustee was 
 i trustee died, the 
 Eq. 233 ; and see 
 
 A a new trustee 
 Harris r. Harris, 
 certificate of dis- 
 ;, a petition for hiB 
 _sd, re Bridgman, 1 
 ^ctofl849, 8. 130, 
 icrupt trustees was 
 man, 1 Dr. & Sm. 
 
 Where the application is made in consequence of the trustee refusing to act, the 
 disclaimer may be made at the bar of the Court, Foster v, Dawber, 1 Dr. & Sm. 
 172 ; re Barnes, Seton (4th ed.), 542. 
 
 Many cases in which it would formerly have been necessary to apply to the 
 Court to appoint new trustees are now provided for by R. S. 0., c. 107, s. 3. 
 
 Among the principles by which the discretion of the Court is guided in appoint- 
 ing new trustees, are the following : — 
 
 First, in selecting a person for the ofiBce, the Court will have regard to the wishes of 
 the author of the trust, expressed in or plainly deducible from the instrument creat- 
 ing it. Second, the Court will not appoint a person with a view to the interest of 
 some one of the c. q. t. in opposition to the interest of others. Third, the Court will 
 have regard to whether the appointment will promote or impede the execution of 
 the trust. But semble the mere fact of the continuing trustee refusing to act with the 
 proposed new trustee would not be sufficient to induce the Court to refrain from 
 appointing him, re Tempest, L. R. 1 Chan. App. 485. 
 
 The Court will appoint two trustees instead of one, re Tunstall, 4 D. & Sm. 
 421; Flinty v, West, 16 Beav. 356; ex parte Wilkinson, 2 Deac. 151; Birch v. Cropper, 
 2 D. & Sm. 2.55 ; Grant v. Grant, 34 L. J. Ch. 641 ; and where the trust property 
 had greatly increased two trustees were appointed in addition to two existing 
 trustees ; re Bathurst, 2 Sm. & G. 169 ; re Boycott, 5 W. R. 1.5. But the Court 
 will not appoint one trustee in place of two, re Ellison, 2 Jur. N. S. 62 ; re Porter, 
 /*., 349 ; re Tunstall. 15 Jur. 645 ; re Dickenson, 1 Jur. N. S. 724. But two have 
 been appointed instead of three where no active duties remained to be performed, 
 Bulkely v. Earl of Eglinton, 1 Jur. N. S. 994 ; re Marshall, W. N. (1868) 126 , 
 re Marriott's trusts, lb. 215, and where one of three trustees wished to retire the 
 Court appointed the two continuing truatess to act in place of the three, re Stokes, 
 L. R. 13 Eq. 333 ; and see Emmett v. Clarke, 9 W. R. 515 ; 7 Jur. N. S. 404 ; re 
 Harford's trusts, L. R. 13 Ch. D. 135 ; but in the later case, re Colyer, 43 L. T. 454, 
 the Court refused to follow, re Stokes and re Harford. 
 
 As a general rule the Court will not appoint a sole trustee. Grant v. Grant, 6 
 N. R. 347 ; re Dickinson, 1 Jur. N. S. 724 ; but where the trust was shortly to be 
 wound up, and there had originally been only one trustee, the Court appointed ^ 
 sole trustee in the place of a lunatic trustee, re Reynault, 16 Jur. 233. 
 
 A trustee may be appointed by the Court of one or more specific trusts created 
 bv an instrument, and not of the entire trusts created thereby, re Cotterill, 12 W. 
 S. 515 ; but see re Garty, 10 L. T. N. S. 331 ; re Dennis, 12 W. R. 275 ; ParneU v. 
 Kingston, 3 Sm. & G. 337. 
 
 The Court will not generally appoint as trustee a foreigner resident abroad, 
 re Guibert, 16 Jur. 852 ; but see re Drewe, W. N. (1876) 168 ; R. S. O., c. 97 ; but 
 where the beneficiary resided abroad, and the trust property was to be invested in 
 foreign securities, trustees resident in the same place as the beneficiary v.'ere ap- 
 pointed by the Court, re Smith, W. N. (1872) 134 ; re Liddiard, 42 L. T. N. S. 621. 
 
 A woman, although unmarried, will not be appointed sole trustee, Brook v. 
 Brook, 1 Beav. 531 ; and see Lewin (7th ed.) 34, 719 ; Lake v. De Lambert, 4 Ves. 
 592 ; but an unmarried lady may be appointed jointly with another trustee, re 
 Campbell, 31 Beav. 176 ; re Berkley, L. R. 9 Chan. App. 720. 
 
 The husband of a cestui que trust was appointed trustee jointly with another on 
 his undertaking that he would, in the event of becoming sole trustee, immediately 
 take, steps for the appointment of a co-trustee, re Hattatt, W. N. (1870) 14; and 
 one of the firm of solicitors acting for the petitioners was appointed, re Brentnall, 
 W. N. (1872) 77. 
 
 A cestui que trust may, under special circumstances, be appointed, ex parte Glut- 
 ton, 17 Jur. 988 ; ex parte Conybeare, 1 W. R. 458 ; Forster v. Abraham, L. R. 17 
 Eq. 351 ; as to appointing a near relative of the parties interested, see Wilding v. 
 Bolder, 21 Beav. 222 ; re Hattatt, W. N. (1870) 14. A trustee appointed out of 
 Court was reappointed by the Court for the purpose of making a vesting order, re 
 Mundell, 2 L. T. N. S. 6o3 ; re Dalgleish, L. R. 4 Ch. D. 143 ; (but see re Driver, 
 L. R, 19 Eq. 352, where the Court refused to do this, but appointed an additional 
 trustee, and then made a vesting order) but evidence of fitness is required in such 
 a case, re Maynard, 16 Jur. 1084 ; re Dalgleish, supra ; an affidavit of a third party 
 of the willin,2;ness of the proposed trustee to act is insufficient, the written consent 
 to act of the proposed new trustee, duly verified by affidavit, must be produced, 
 
il '"i} 
 
 164] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 ■ t I 
 
 ■: i #* r M 
 
 M 
 
 unless counsel appear to consent on his behalf, re Parke, 2] L. T. 218 ; but the trus- 
 tee need not appear, re Draper, 2 W. R. 440 ; an affidavit of fitness must also be 
 produced, re Battersby, 16 Jur. 900 ; re Tunstall, 15 Jur. 645, 981 ; as a general 
 rule the affidavit of fitness by the solicitor of the petitioner is not enough, Grundy 
 V. Buckeridge, 22 L. J. Ch. 1007. 
 
 The Court can now appoint new trustees under this section, although there are 
 no existing trustees, ajid even though the trustees named by a testator all died in 
 his lifetime, see Trustee Extension Act, 1852, s. 9, post; re Smirthwaite, L. R. 11 
 Eq. 251 ; but in such a case the heirs-at-law must be served, Gunson v, Simpson, L. 
 R. 5 Eq. 332. So where the testator had appointed executors, but no trustees, trus- 
 tees were appointed by the Court, re Davis, L. R. 12 Eq. 214 ; l^odkin v. Brunt, 
 L. R. 6 Eq. 580; re Gillett, 25 W. R. 23. 
 
 33. And be it enacted that the person or persons who, upon 
 the making of such order as last aforesaid shall be trustee or 
 trustees, shall have all the same rights and powers as he or they 
 would have had if appointed by a decree in a suit duly 
 instituted. 
 
 A discretionary consent to be given by "the undersigned trustees," is annexed 
 to the office and may be given by a trustee apiJointed by the Court, Byam v. Byam, 
 19 Beav. GO; but trustees appointed by the Court were held not to have the right 
 to exercise a power to appoint trustees in their own place, Oglander v. Oglander, 2 
 D. & Sm. 381; Newman v. "Warner, 1 Sim. N. S. 457; but see now R. S. O., c. 107, 
 
 8.3. 
 
 34. And be it enacted, that it shall be lawful for the said 
 Court of Chancery, upon making any order for appointing a 
 new trustee or new trustees, either by the same or by any subse- 
 quent order to direct that any lands subject to the trust shall 
 vest in the person or persons who upon the appointment shall 
 be the trustee or trustees for such estate, as the Court shall 
 direct ; and such order shall have th ^, same effect as if the per- 
 son or persons (who before such order were the trustee or 
 trustees, if any) had duly executed all proper conveyance and 
 assignments of such lands for such estates. 
 
 An order was made under this section where a trustee apointed by the parties 
 was re-appointed by the Court, re Clay, W. N. (1873) 129 ; re Dalgleish, L. R. 4 
 Ch. D. 143 ; and where a mortgagee's executors had been ordered to transfer the 
 mortgage debt to the trustees of a settlement, it was held that this was the ap- 
 pointment of new trustees by the Court and a vesting order of the mortgaged 
 property was made under this section, re Hughes, 2 H. a; M. 695. 
 
 It has been said that before the Court will make an order vesting a trust estate 
 in another trustee in place of one declining to act, the latter must execute a formal 
 deed of disclaimer, re Badcock, 2 W. R. 386 ; re Ellison, 2 Jur. N. S. 62 ; but this 
 has been doubted, see Foster v. Dawber, 1 Dr. & Sm. 172. 
 
 The Court may make an order divesting the whole estate from the continuing 
 and incapacitated trustee, and vesting it in the new and continuing trustees as joint 
 tenants, Smith v. Smith, 3 Drew. 72 ; re Fisher, 1 W. R. 505 ; but the Court has no 
 power to direct how the trust shall be executed, re Taylor, 2 D. F. &; J. 125. 
 
 The Court will under this section make an order vesting leaseholds in a new 
 trustee appointed by the Court in place of a deceas(jd sole trustee, notwithstanding 
 r ) personal representative of the latter's estate may have been appointed, re Dal- 
 gleish, L. R. 4 Ch. D. 143. This decision was followed by .Tessel, M. R., in re Hil- 
 liard, 42 L. T. N. S. 79 ; he, however, at the same time expressed himaelf as unable 
 to find any power in the Act enabling him to make the order. 
 
li ■ ' f 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 [165] 
 
 35. And be it enacted, that it shall be lawful for the said 
 Court of Chancery, upon making any order for appointing a new 
 trustee or new trustees either by the same or any subsequent 
 order to vest the right to call for a transfer of any stock sub- 
 ject to the trust, or to receive the dividends or income thereof, 
 or to sue for and recover any chose in action, subject to the 
 trust, or any interest in respect thereof, in the person or per- 
 sons who upon the appointment shall be the trustee or trustees. 
 
 The Court has power under th?s section to vest the right as to stock standing in 
 the name of a deceased person who has no personal representative, re Herbert, 8 
 W. R. 272; re Kadeheim, Blake, V. C, 6th Nov., 1878. 
 
 The Court will not make a vesting order which would lend any sanction to a 
 past breach of trust, re Harrison, 22 L. J. Ch. 69 ; a vesting order vests estate from 
 the date of the order, Woodfall v. Arbuthnot, L. R. 3 P. & D. 108. 
 
 Under this section the Court has no power to vest the right to the stock itself, 
 but only the right to call for a transfer, in which respect this section differs from 
 section 29 ante, re Smyth, 4 D. & Sm. 499 ; but this difficulty is now removed by 
 the Trustee Extention Act, section 6. 
 
 36. And be it enacted, that any such appointment by the 
 Court of new trustees, and any such conveyance, assignment, 
 or transfer as aforesaid, shall operate no further or otherwise 
 as a discharge to any former or continuing trustee than an 
 appointment of new trustees under any power for that purpose 
 contained in any instrument would have done. 
 
 37. And be it enacted, that an order under any of the 
 hereinbefore contained provisions, for the appointment of a 
 new trustee or trustees, or concerning any lands, stock, or chose 
 in action subject to a trust, may be made upon the application 
 of any person beneficially interested in such lands, stock, or 
 chose in action, whether under disability or not, or upon the 
 application of any person duly appointed as a trustee thereof ; 
 and that an order under any of the provisions hereinbefore 
 contained concerning any lands, stock, or chose in action subject 
 to a mortgage may be made on the application of any person 
 beneficially interested in the equity of redemption, whether 
 under disability or not, or of any person interested in the 
 moneys secured by such mortgage. 
 
 On the application for the appointment of new trustees, all the cestui que trusts 
 should be co-petitioners (those under disabilitj; petitioning by their next friends or 
 in the case of a lunatic so found, by his committee), re Fellows, 2 Jur N.S. 62; re 
 Wheeler, 1 D. M. & G. 434 ; or they must be served ; biit when the beneficiaries 
 are numerous some may petition for the class, Jones v. James, 9 Ha. app. 80 ; 
 but the committee of a lunatic c. q, t, is not beneficially interested within the 
 meaning of this section, re Eourke, 2 D. J. & S. 420 ; any person having a contin- 
 ent interest in real estate may petition for the appointment of a new trustee, re 
 Sheppard, 11 W. R. 60 4 D. F. & J. 423 ; compare Ross v. Ross 12 Beav. 89 ; Allan 
 V. Allan, 1,5 Ves. 130; Davies v. Angell, 31 L. J. Ch. 613. 
 
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 [166] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 [38. and 39. Relate to proceedings before the Master, whose 
 oflSce was abolished by Imperial Statutes, 15 and 16 Vie. c. 80; 
 and the provisions of these sections were consequently obsolete 
 at the time the provisions of this Act were introduced into 
 Ontario. See R. S. 0. c. 40, s. 36.1 
 
 40. And be it enacted, f^&i any person or persons entitled 
 in manner aforesaid to apply for an order from the said Court 
 of Chancery, or from the Lord Chancellor, intrusted as afore- 
 said, may, should he so think fit, present a petition, in the first 
 instance to the Court of Chancery, or the Lord Chancellor, in- 
 trusted as aforesaid, for such order as he may deem himself 
 entitled to, and may give evidence by affidavit or otherwise in 
 support of such petition before the said Court, or the Lord 
 Chancellor, intrusted as aforesaid, and may serve such person 
 or persons with notice of such petition as he may deem entitled 
 to service thereof. 
 
 Affidavits filed in a cause were allowed to be used as evidence on a petition, re 
 Pickance, 10 Ha. app. 35 ; and Me re Hoskins, 4 D. & J. 436. A petition may 
 after it has been presented be amended, by order of the Court, by adding co-peti- 
 tioners without being re-answered, re Carpenter, 8 W. K. 492. 
 
 The general rule is that all the c. q. t. should be served, re Richards, 5 D. & S. 
 636 ; re Sloper, 18 Beav. 596 ; re Maynard, 16 Jur. 1084 ; re Fellows, 2 Jur. N. S. 
 62 ; and see re Lonsdale, 14 Jur. 1101 ; re Thomas, 15 Jur. 187 ; re Prescott, 19 L. 
 T. 371. Where infants are interested a guardian ad hoc must be appointed, and 
 the latter must be served, but not the infants. In the case ot retiring trustees, the 
 old trustees should be served, re Sloper, 18 Beav. 596. When the c. q. t. were 
 abroad, ex parte Hardman, 3 Men. Deac. & DeG. 559 ; re Richards, 5 D. & S. 636 ; 
 but where the c.q. t. are numerdHs, service on some may be dispensed with, re 
 Sharpley, 1 W. It. 271 ; re Smyth, 2 D. & S. 781. On applications by lessees or 
 tenants for life the reversioner or remainderman must be served, re Farrant, 20 
 L. J. Ch. .532 ; re Maynard, 16 Jur. 1084 ; re Prescott, 19 L. T. 375 ; but see re 
 Prvse, L. R. 10 Eq. 531 ; where the lease did not prohibit assignment, a vesting 
 order of the lessee's interest was made in the absence of the lessor, re Matthews, 2 
 W. R. 85 ; so also an order to vest lands subject to an annuity may be made in the 
 absence of the annuitant, re Winteringham, 3 W. R. 578 ; re Marshall, 3 D. & S. 
 670. 
 
 A petition as to lands vested in a lunatic trustee must be served upon the com- 
 mittee, re Saumarez, 8 D. M. & G. 390 ; re Wylde, 5 D. M. & G. 25 ; re Wood, 
 3 D. F. & J. 125 ; re Parker, 32 Beav. 580 ; but in another case service on the luna- 
 tic or his committee was deemed unnecessary, re East, L. R. 8 Chan. App. 735. In 
 case of the bankruptcy of a trustee, service must be made on his assignee, ex parte 
 Garden, 12 Jur. 391 ; and on the bankrupt, ex parte Whitby, 1 Dea. 478 ; ex parte 
 Harris, 11 L. J. B. 16 . The guardian of the infant heir of a deceased trustee need 
 not be served with the petition for appointment of new trustees, re Little, L. R. 7 
 Eq. 323. 
 
 41. And be it enacted, that upon the hearing of any such 
 motion or petition it shall be lawful for the said Court or for the 
 said Lord Chancellor, should it be deemed necessary, to direct 
 a reference to one of the masters in ordinary of the Court of 
 Chancery to inquire into any facts which require such an 
 investigation, or it shall be lawful for the said Court or for the 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [167] 
 
 ster, whose 
 
 Vic. c. 80; 
 
 ly obsolete 
 
 duced into 
 
 ns entitled 
 said Court 
 d as afore- 
 in the first 
 ,ncellor, in- 
 em himself 
 fcherwise in 
 the Lord 
 luch person 
 em entitled 
 
 a petition, re 
 
 petition ma^ 
 
 voiding co-peti- 
 
 ards, 5 D. & S. 
 '8, 2 Jur. N. S. 
 Prescott, 19 L. 
 i.ppointed, and 
 ig trustees, the 
 e c. q. t. were 
 5 D. &S. 636; 
 ensed with, re 
 I by lessees or 
 re Farrant, 20 
 r5 ; but see re 
 Lent, a vesting 
 ■e Matthews, 2 
 be made in the 
 3hall, 3D. &S. 
 
 upon the com- 
 25 ; re Wood, 
 ice on the luna- 
 . App. 735. In 
 signee, ex parte 
 
 478 ; ex parte 
 id trustee need 
 Little, L. R. 7 
 
 tf any such 
 rt or for the 
 y, to direct 
 le Court of 
 re such an 
 t or for the 
 
 said Lord Chancellor to direct such motion or petition to stand 
 over to enable the petitioner or petitioners to adduce evidence or 
 further evidence before the said Court, or before the said Lord 
 Chancellor, or to enable notice or any further notice of such 
 motion or petition to be served upon any person or persons. 
 
 43. And be it enacted, that upon the hearing of any such 
 motion or petition whether any certificate or report from a 
 master shall have been obtained or not, it shall be lawful for 
 the Court, or the Lord Chancellor, intrusted as aforesaid, to 
 dismiss such motion or petition with or without costs, or to 
 make an order thereupon in conformity with the provisions of 
 this Act. 
 
 43. And be it enacted, that whensoever, in any cause or 
 matter, either by the evidence adduced therein, or by the ad- 
 mission of the parties, or by a report of one of the masters of 
 the Court of Chancery, the facts necessary for an order under 
 this Act shall appear to such Court. to be sufficiently proved, 
 it shall be lawful for the said Court, either upon the hearing 
 of the said cause or of any petition or motion in the said cause 
 or matter, to make such order under this Act. 
 
 An order may be made in a suit without petition. Wood v. Beetlestone, 1 K. & 
 J. 213 ; CoUard v. Roe, 4 Jur. N. S. 431 ; 4 D. & J. 525 ; Lechmere v. Clamp, 30 
 Beav. 218 ; Hargreaves v. Wright, 1 W. E. 408 ; Hughes v. Wills, 2 W. R. 575 ; 
 but see Gough v. Bage, W. N. (1871) p. 237 ; Judge in Chambers held to have no 
 jurisdiction in an administration suit to make an order vesting the right to transfer 
 stock, Frodsham v. Frodsham, L. R. 15 Ch. D. 317 ; and where the property is 
 vested in a lunatic, in England, it is held there must be a petition in lunacy, 
 Jeffryes v. Drysdale, 9 W. R. 428 ; as to whether the Court of Chancery of Ontario 
 has Dower to execute the powers respecting lunatics conferred by this Act on the 
 Lora Chancellor, see ante, note to section 3. 
 
 44. And be it enacted, that whenever any order shall be 
 made under this Act, either by the Lord Chancellor, intrusted 
 as aforesaid, or by the Court of Chancery, for the purpose of 
 conveying or assigning any lands, or for the purpose of releas- 
 ing or disposing of any contingent right, and such order shall 
 be founded on an allegation of the personal incapacity of a 
 trustee, or mortgagee, or on an allegation that a trustee or the 
 heir or devisee of a mortgagee is out of the jurisdiction of the 
 Court of Chancery, or cannot be found, or that it is uncertain 
 which of several trustees, or which of several devisees of a 
 mortgagee, was the survivor, or whether the last trustee, or the 
 heir or last surviving devisee of a mortgagfee, be living or dead, 
 or on an allegation that any trustee or mortgagee has died in- 
 testate without an heir, or has died and it is not known who 
 is his heir or devisee, then in any of such cases the fact that the 
 
 ■,'■< 
 
[168] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 Lord Chancellor, intrusted as aforesaid, or the Court of Chan- 
 cery, has made an order upon such an allegation, shall be con- 
 clusive evidence of the matter so alleged in any court of law or 
 equity upon any question as to the legal validity of the order : 
 Provided always that nothing herein contained shall prevent 
 the Court of Chancery directing a re-conveyance or re-assign- 
 ment of lands conveyed or assigned by any order under this 
 Act, or a re-disposition of any contingent right conveyed or 
 disposed of by such order; and it shall be lawful for the said 
 Court to direct any of the parties to any suit concerning such 
 land or contingent right to pay any costs occasioned by the 
 order under this Act, when the same shall appear to have been 
 improperly obtained. 
 
 As to orders made under the Act, founded on certain allegations, being con- 
 clusive evidence of the matters contained in these allegations, see CoUinson v. 
 Collinson, 3 D. M. & G. 409, 419. 
 
 45. And be it enacted, that it shall be lawful for the Lord 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, to 
 exercise tho powers herein conferred for the purpose of vesting 
 any lands, stock or chose in action in the trustee or trustees of 
 any charity or society, over which charity or society the said 
 Court of Chancery would have jurisdiction upon suit duly 
 instituted, whether such trustee or trustees shall have been 
 duly appointed by any power contained in any deed or instru- 
 ment, or by the decree of the said Court of Chancery, or by order 
 made upon a petition to the said Court under any statute 
 authorizing the said Court to make an order to that effect in 
 a summary way upon petition. 
 
 46. And be it enacted, that no lands, stock, or chose in 
 action vested in any person upon any trust or by way of 
 mortgage, or any profits thereof, shall escheat or be forfeited 
 to Her Majesty, her heirs or successors, or to any corporation, 
 lord or lady of a manor, or other person, by reason of the at- 
 tainder or conviction for any otfence of such trustee or mort- 
 gagee, but shall remain in such trustee or mortgagee, or survive 
 to his or her co-trustee, or descend or vest in his or her repre- 
 sentative, as if no such attainder or conviction had taken place. 
 
 Where an illegitimate mortgagee in fee, devised her real and personal estate on 
 trust and died without issue, the Court vested the legal estate in the mortgage 
 premises in a purchaser, the mortgage debt having been paid off, re Minchin, 2 
 W. R. 179 ; but see R. S. O., c. 99, s. 5 ; and R. S. O., c. 107, s. 15, 16, enabling 
 the personal representative to discharge mortgages ; but where the devisee in trust 
 named in the will of a bastard predeceases his testator, it is said a vesting order 
 cannot be made so as to defeat the rights of the Crown to an escheat, see Bartlett 
 V. Bartlcbi, cited in Ince's Trustee Acts (2nd ed.), p. 91. 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [169] 
 
 By section 8 of the " Trustee Extension Act " the Court has power to appoint 
 new trustees in lieu of persons convicted of felony. 
 
 47. And be it enacted, that nothing contained in this Act 
 shall prevent the escheat or forfeiture of any lands or personal 
 estate vested in any such trustee or mortgagee, so far as relates 
 to any beneficial interest therein of any such trustee or mort- 
 gagee, but such lands or personal estate, so far as relates to 
 any such beneficial interest, shall be recoverable in the same 
 manner as if this Act had not passed. 
 
 See Imperial Stat. 4 & 5 Wm. IV., c. 23, s. 5 ; and see ante, section 1, note. 
 
 48. And be it enacted, that where any infant or person of 
 unsound mind shall be entitled to any money payable in dis- 
 charge of any lands, stock, or chose in action conveyed, 
 assigned, or transferred under this Act, it shall be lawful for 
 the person by whom such money is payable to pay the same 
 into the Bank of England, in the name and with the privity of 
 the Accountant-General, in trust in any cause then depending 
 concerning such money, or, if there shall be no such cause, to 
 the credit of such infant or person of unsound mind, subject to 
 the order or disposition of the said Court ; and it shall be lawful 
 for the said Court, upon petition in a summary way, to order 
 any money so paid to be invested in the public funds, and to 
 order payment or distribution thereof, or payment of the divi- 
 dends thereof, as to the said Court shall seem reasonable ; and 
 every cashier of the Bank of England who shall receive any 
 such money is hereby required to give to the person paying 
 the same a receipt for such money, and such receipt shall be 
 an effectual discharge for the money therein respectively ex- 
 pressed to have been received. 
 
 49. And be it enacted, that where in any suit commenced 
 or to be commenced in the Court of Chancery, it shall be made 
 to appear to the Court by affidavit that diligent search and 
 inquiry has been made after any person made a defendant, who 
 is only a trustee, to serve him with the process of the Court, 
 and that he cannot be found, it shall be lawful for the said 
 Court to hear and determine such cause, and to make such 
 absolute decree therein against every person who shall appear 
 to them to be only a trustee, and not otherwise concerned in 
 interest in the matter in question, in such and the same man- 
 ner as if such trustee had been duly served with the process of 
 the Court, and had appeared and filed his answer thereto, and 
 had also appeared by his counsel and solicitor at the hearing of 
 such cause: Provided always, that no such decree shall bind, 
 
■i 
 
 [170] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 aflecfc, or in anywise prejudice any person against whom the 
 same shall be made, without service of process upon him as 
 aforesaid, his heirs, executors, or administrators, for or in 
 respect of any estate, right, or interest which such person shall 
 have at the time of making such decree, for his own use or 
 benefit, or otherwise than as a trustee as aforesaid. 
 
 In Westhead v. Sale, 6 W, R. 52, the Court directed the Clerk of Records and 
 Writs to certify that the cause was ready for hearing in the absence of n truHtee 
 who could not be found. 
 
 [50, Kelates to the practice under the obsolete sections 38 
 and 39.] 
 
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 51. And be it enacted, that the Lord Chancellor, intrusted 
 as aforesaid, and the Court of Chancery, may order the costs 
 and expenses of and relating to the petitions, orders, directions, 
 conveyances, assignments, and transfers to be made in pursu- 
 ance of this Act, or any of them, to be paid and raised out of, 
 or from the lands or personal estate, or the rents or produce 
 thereof, in respect of which the same respectively shall be 
 made, or in such manner as the said Lord Chancellor or Court 
 shall think proper. 
 
 ' a cast V. ,.,:re a 
 
 r the additional 
 
 .11 the matter o{ a 
 
 y, ex parte Ca' 10 
 
 84 ; of a trustei ast 
 
 applicnMon is for the 
 
 Where a bill was filed for the appointment of a new trustee 
 petition might have been presented, the plaintiff was held 'it" 
 costs, Thomas v. Walker, 18 Beav. 521 ; the costs of ai" ' 
 trust occasioned by the lunacy, re Fulham, 15 Jur. 69 
 Ves. 554 ; or bankruptcy, ex parte Painter 2 Dea. & • 
 be borne by the c. q. t. ; or the trust estate, according a. 
 
 benefit of the c. q. t. solely, or generally for the benefit ot i,\»i esta' , nee Carter v 
 Sebright, 26 Beav. 374 ; re Brackenbury, L. R. 10 Eq. 45 ; in ex arte Davies, 16 
 Jur. 882, the new trustee was, by consent, ordered to pay the costu, and the same, 
 with interest, were charged on the trust estate. Where new trustees of two funds 
 are appointed the costs will be charged ratably, re Grrant, 2 J. & H. 764. A trustee 
 who is served and appears on an application to appoint new trustees, in the absence 
 of misconduct, is entitled to costs, ex parte Harris, 11 L. J. By. 16 ; Turner v. 
 Mollineux, 3 L. T. N. S. 687. The costs of an application for a vesting order, 
 caused by the death of a vendor intestate leaving an infant heir, must be borne by 
 vendor's estate. Heard v, Cuthbert, 2 Ir. Ch. R. 369 ; Bradley v. Munton, 16 Beav. 
 294 ; Ayles v. Cox, 17 Beav. 584 ; and see re South Wales Railway Company, 14 
 Beav. 418 ; and see Commander v. Gilrie, 6 Gr. 473. The costs of an application 
 for a vesting order by a mortgagor paying off the debt, occasioned by the mortga- 
 gee having died leaving an heir who could not be found, or who is lunatic, must 
 be paid by the mortgagor, re Lewes, 1 Mac. & G. 23 ; re Marrow, Cr. & Ph. 142 ; 
 ex parte Ommaney, 10 Sim. 298 ; King v. Smith, 6 Ha. 473 ; re Jones, 2 D. F. & J. 
 6.54 ; re Stuart, 4 D. & J. 317 ; if the application be occasioned by the mortgagee 
 himself becoming lunatic, the application should be made by his committee, and 
 the costs will be payable out of the lunatic's estate, re Rowley, 1 N. R. 251 ; re 
 Viall, 8 D. M. & 6. 439 ; re Wheeler, 1 D. M. & G. 434 ; ex parte Richards, 1 J. 
 & W. 264 ; re Townsend, 2 Ph. 348 ; re Thomas, 22 L. J. 0' 858 ; re Jones, L. R. 
 2 Ch. D. 70 ; the mortgagor is not entitled to costs, re Phillips, L. R. 4 Ch. App. 
 629 ; but if it appear on the face of the mortgage that a lunatic mortgagee is a mere 
 trustee, the costs will be payable out of the trust estate, re Jones, 34 L. T. N. S. 470 ; 
 re Lewes, 1 Mac. & G. 23 ; re Townsend, ib. 686 ; and if the mortgagor make the 
 application in a case where the committee had not declined to act he will be ordered 
 to pay the costs, re Wheeler, 1 D. M. & G. 434. 
 
ENGLISH TRUSTEE ACT, 1850. 
 
 [171] 
 
 sections 38 
 
 It was held in re Primrose, 23 Beav. 500, that the Court cannot order a respond- 
 ent to pay costs of a vestinK order occasioned by his own misconduct ; but see the 
 remarks on that case in re Woodburn, 1 D. & J. 351 ; costs occasioned by trustees 
 improperly refusing to retire may be ordered to be paid by them, Legg v, Maokrell, 
 2 D. F. & J. 551 ; Att.-Gen. v. Murdook, 2 K. & J. 571 ; Grierson v. Astle, 3 L. 
 T. N. S., 288 ; King v. King, 1 D. & J. 663 ; Palairet v. Carew, 32 Beav. 564 ; re 
 Wiseman, 18 W. R. 674. Where a petition to appoint new trustee was presented oh 
 insufficient grounds the petitioner was refused his costs, Richardson v. Grubb, 16 
 W. R., 176 ; a trustee appearing on the petition to appoint new trustees and dis- 
 claiming at the bar will only be allowed his costs between party and party, Bulk- 
 ley V. Earl of Eglinton, 1 Jur. N. S. 994 ; and see Norway v. Norway, 2 M. & 
 JL* 27o» 
 
 The costs of applications to anr>oint new trustees, as a general rule, come out of 
 the corpus of the trust fund, re Fellows, 2 Jur. N. S. 62 ; re Fulham, 15 Jur. 69 ; 
 «z joarto Davies, 16 Jur. 882; and when new trustees are appointed of two distinct 
 funds the costs are to be borne thereby ratably, re Grant, 2 J. 4 H. 764 ; but where 
 a legacy was bequeathed to a sole trustee upon trust for a tenant for life and after 
 his death absolutely for the revisioners, and the latter applied for the appointment 
 of an additional trustee, the costs were ordered to be paid by the petitioners and 
 not out of the corpus, re Brackenbury, L. R. 10' £q. 45. 
 
 [53. Empowers the Lord Chancellor to direct a commission 
 De lunatico to issue.] 
 
 See ante section 3, note. 
 
 63. And be it enacted, that upon any petition under this 
 Act being presented to the Lord Chancellor, intrusted as afore- 
 said, or to the Court of Chancery, it shall be lawful for the said 
 Lord Chancellor, or the said Court of Chancery to postpone 
 making any order upon such petition until the right of the 
 petitioner or petitioners shall have been declared in a suit duly 
 instituted for that purpose. 
 
 Where a father purchased an estate in the name of his son without intending an 
 advancement, the Court refused to declare the son who was a lunatic, a trustee for 
 the father without a suit, and directed a suit accordingly, Colinson v. CoUinson, 3 
 D. M. & G. 409 ; and see re Burt, 9 Ha. 289. Where a bank manager had taken a 
 conveyance in his own name but on an alleged secret trust for the bank, and died 
 without making any declaration of trust, the Court refused to declare his heir at law 
 a trustee for the bank without suit, re Greer, Vankoughnet C, May, 1868. 
 
 54. And be it enacted, that the powers and authorities 
 given by this Act to the Court of Chancery in England shall 
 extend to all lands and personal estate within the dominions, 
 plantations, and colonies belonging to Her Majesty (except 
 Scotland). 
 
 Under this section a vesting order was made bv the Court of Chancery in Eng- 
 land, as to lands in Canada, re Schofield. 24 L. T. 322 ; re Groom, 11 L. T. N.S. 
 336 : but it was held that lands in Ireland could not be vested by the Court in Eng- 
 land, in a trustee appointed in the place of a lunatic trustee, re Davies, 3 Mac. & 
 6. 278 ; but when the c. q. t. was in England and the surviving trustee in Ireland, 
 the Court in England appointed a new trustee and vested the lands in him, re Hewitt, 
 6W. R.537. 
 
 Where in an administration suit part of the assets consisted of Government war- 
 rants for land in Manitoba, which were sold under a decree, it was held that the 
 Court in Ontario might grant an order vesting such land warrants in a purchaser, re 
 
 ■■I 
 
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 i 
 
 mm 
 
 •' ' a 'i 
 
 [172] 
 
 ENGLISH TRUSTEE ACT, 1850. 
 
 Bobertaon, Robertson v. Robertson, 22 Gr. 449. But it seems doubtful whether 
 the Court in Ontario could vest lands situate out of the jurisdiction of the Court, 
 inasmuch as the Court derives all its powers from the Act of the Local Legislature 
 which Legislature has no power itself over lands beyond its jurisdiction, and would 
 therefore seem incapable of conferring jurisdiction over such lands upon any Court 
 created by it. 
 
 [55. Applies A.ct to Ireland.] 
 
 [56. Powers of Lord Chancellor in lunacy extended to prop- 
 erty in colonies.] 
 
 See ante, section 3, note. 
 
 [57, Extends power conferred on Lord Chancellor to Lord 
 Chancellor of Ireland.] 
 
 58. And be it enacted, that in citing this Act in other Acts 
 of Parliament, and in legal instruments and in legal proceed- 
 ings, it shall be sufficient to use the expression, the " Trustee 
 Act, 1850." 
 
 59. And be it enacted, that this Act shall come into opera- 
 tion on the first day ^C November, 1850. 
 
 m i 
 
 l':'> 
 
 !f; 
 
ENGLISH TRUSTEE ACT, 1852. 
 
 [173] 
 
 An Act to extend the provisions of the *' Trustee Act, 
 1850." 
 
 (Imperial Statute, 15 & 16 Vict., Cap. 55.) 
 
 [30^^ June, 1852.] 
 
 WHEREAS it is expedient to extend the provisions of the 
 Trustee Act, 1850 ; Be it therefore enacted by the 
 Queen's Most Excellent Majesty, by and with the advice and 
 consent of the Lords Spiritual and Temporal, and Commons 
 in this present Parliament assembled, and by the authority of 
 the same : 
 
 1 . That when any decree ov order shall have been made by 
 any Court of Equity directinj^ the sale of any lands for any 
 purpose whatever, every person seised or possessed of such 
 land, or entitled to a contingent right therein, being a party to 
 the suit or proceeding in which such decree or order shall have 
 been made, and bound thereby or being otherwise bound by 
 such decree or order, shall be deemed to be so seised or pos- 
 sessed or entitled (as the case may be) upon a trust within the 
 meaning of the Trustee Act, 1850 ; and in every such case it 
 shall be lawful for the Court of Chancery, if the said Court 
 shall think it expedient for the purpose of carrying such sale 
 into effect, to make an order vesting such lands or any part 
 thereof, for such estate as the Court shall think fit, either in 
 any purchaser or in such other person as the Court shall direct ; 
 and every such order shall have the same effect as if such per- 
 son so seised or possessed or entitled had been free from all 
 disability, and had duly executed all proper conveyances and 
 assignments of such lands for such estate. 
 
 See ante section 29 of Trustee Act of 1880, which applied only to decrees for 
 sale for payment of debt. This section extends to orders, and to sales under 
 
 decrees or orders for any purpose whatever. This section applies to cases where 
 the decree was made before the passing of the Act, Wake v. Wake, 17 Jur. 545. 
 The decree or order binds only the parties to the suit, where therefore the person 
 having the legal estate is not before the Court no order can be made affecting it, 
 Gunson v. Simpson, L. R. 5 Eq. 332 ; and see Gough v. Bage, W. N. (1871) p. 237. 
 As to vesting orders, see R. S. O., c. 40, s. 101. 
 
 The Court of Chancery has jurisdiction even where the party seised or possessed 
 is of unsound mind, but not found lunatic. Herring v. Clark, L. B.4 Ch. App. 167. 
 
m 
 
 HJ it- . 
 
 s: 
 
 f ;^ 
 
 'i * c 
 
 ^ 
 
 ii i 
 
 [174] 
 
 ENGLISH TRUSTEE ACT, 1862. 
 
 2. That sections numbered 17 and 18 in the Queen's 
 Printer's Copy of the Trustee Act, 1850, be repealed ; and in 
 every case where any person is or shall be solely or jointly 
 seised or possessed of any lands, or entitled to a contingent 
 right therein upon any trust, and a demand shall have been 
 made upon such trustee by a person entitled to require a con- 
 veyance or assignment of such lands, or a duly authorized 
 agent of such last mentioned person, requiring such trustee to 
 convey or assign the same, or to release such contingent right, 
 it shall be lawtul for the Court of Chancery, if the said Court 
 shall be satisfied that such trustee has wilfully refused or 
 neglected to convey or assign the said lands for the space of 
 twenty eight days after such demand, to make an order vest- 
 ing such lands in such person, in such manner and for such 
 estate as the Court shall direct, or releasing such contingent 
 right in such manner as the Court shall direct ; and the said 
 order shall have the same effect as if the trustee had duly ex- 
 ecuted a conveyance or assignment of the lands, or a release of 
 such right, in the same manner and for the same estate. 
 
 A married woman is capable of refusing, Rowley v. Adams, 14 Beav. 130. 
 
 A divorced woman may obtain a vesting order against her late husband, Knight 
 V. Knight, W. N. (1866) 114, 14 L. T. N. S. 161 ; and see re O'Donnell, 19 W. R. 522. 
 
 Service of notice on the refusing trustee, who could not be found, was dispensed 
 with, re Crowe, L. R. 13 Eq. 26. 
 
 3. That when any infant shall be solely entitled to any 
 stock upon any trust, it shall be lawful for the Court of Chan- 
 cery to make an order vesting in any person or persons the 
 right to transfer such stock, or to receive the dividends or 
 income thereof, and when any infant shall be entitled, jointly 
 with any person or persons to any stock upon any trust, it 
 shall be lawful for the said Court to make an order vesting the 
 right to transfer such stock, or to receive the dividends or 
 income thereof, either in the person or persons jointly entitled 
 with the infant, or in him or them together with any other 
 person or persons the said Court may appoint. 
 
 Where the infant ia beneficially entitled, it was held an order made under this 
 Act declaring him trustee, was erroneous, and the order was afterwards corrected 
 and made under 1 Wm. IV. , c. 65, sec. 32, re Westwood, 6 W. R. 61, 316 ; and see 
 re Pongerard, 1 D. & S. 426 ; see, however, Sanders v. Homer, 25 Beav. 467. 
 Where a legacy was bequeathed to an infant subject to a trust for his maintenance 
 and education and to be invested in consols ana paid to him at twenty-one, and 
 the executor invested the fund in the joint name of himself and the infant, and 
 the executor died leaving the infant surviving, it was held that the infant was a 
 trustee within Section 2 of Trustee Act, 1850, Gardner v. Cowles, L. R. 3 Ch. D. 
 304 ; and see Rives v. Rives, W. N. (1866) 144. 
 
 4. That where any person shall neglect or refuse to transfer 
 any stock, or to receive the dividends or income thereof, or 
 
ENGLISH TKUSTEE ACT, 1852. 
 
 [175] 
 
 was dispensed 
 
 CO su(} for or recover any chose in action, or any interest in re- 
 spect thereof, for the space of twenty-eight days next after an 
 order of the Court of Chancery for that purpose shall have 
 been served upon him, it shall be lawful for the Court of 
 Chancery to make an order vesting all the right of such per- 
 son to transfer such stock, or to receive the dividends or in- 
 come thereof, or to sue for and recover such chose in action, or 
 any interest in respect thereof, in such person or persons as the 
 Court may appoint. 
 
 5. When any. :tock shall be standing in the sole name of a 
 deceased person and his personal representative shall refuse or 
 neglect to transfer such stock, or receive the dividends or in- 
 come thereof, for the space of twenty-eight days next after an 
 order of the Court of Chancery for that purpose shall have 
 been served upon him, it shall be lawful for the Court of 
 Chancery to make an order vesting the right to transfer such 
 stock, or to receive the dividends or income thereof, in any 
 person or persons whom the said Court may appoint. 
 
 6. When any order being or purporting to be under this 
 Act, or under the Trustee Act, 1850, shall be made by the Lord 
 Chancellor, 'ntrusted as aforesaid, or by the Court of Chancery, 
 vesting the right to any stock, or vesting the right to transfer 
 any stock, or vesting the right to call for the transfer of any 
 stock, in any person or persons, in every such case the legal 
 right to transfer such stock shall vest accordingly ; and the 
 person or persons so appointed shall be authorized and em- 
 powered to execute all deeds and powers of attorney, and to 
 perform all acts relating to the transfer of such stock into his 
 or their own name or names, or otherwise, to the extent and in 
 conformity with the terms of the order ; and the Bank of 
 England and all companies and associations whatever, and all 
 persons, shall be equally bound and compellable to comply 
 with the requisitions of such person or persons so appointed as 
 aforesaid, to the extent and in conformity with the terms of 
 such order, as the said Bank of England, or such companies, 
 associations, or persons would have been bound and compellable 
 to comply with the requisitions of the person in whose place 
 such appointment shall have been n ade. 
 
 Notwithstanding the terms of this section, the Court has, at the^nstance of the 
 Bank of England, reconsidered the propriety of an order made ex parte under the 
 Act, Gardner v. Cowles, L. R. 3 Ch. D. 30i ; and in re Stewart, 8 W. R. 425 ; the 
 Bank successfully appealed against an order directing the .transfer of a fractional 
 part of a dividend. 
 
 7. That every order made or to be made, being or purport- 
 ing to be made under this or the Trustee Act, 1850, by the 
 
I" 
 
 ■4 " 
 
 [176] 
 
 ENGLISH TRUSTEE ACT, 1852. 
 
 Lord Chancellor, intrusted as aforesaid, or by the Court of 
 Chancery, and duly passed and entered, shall be a complete in- 
 demnity to the Bank of England, and all companies and asso- 
 ciations whatsoever, and all persons, for any act done pursuant 
 thereto ; and it shall not be necessary for the Bank of England, 
 or such company or association, or person to inquire concern- 
 ing the propriety of such order, or whether the Lord Chancel- 
 lor, intrusted as aforesaid, or the Court of Chancery had juris- 
 diction to make the same. 
 
 8. That when any person is or shall be jointly or solely 
 seised or possessed of any lands or entitled to any stock upon 
 any trust, and such person has been or shall be convicted of 
 felony, it shall be lawful for the Court of Chancery, upon proof 
 of such conviction, to appoint any person to be a trustee in the 
 place of such convict, and to make an order for vesting such 
 lands, or the right to transfer such stock, and to receive the 
 dividends or income thereof, in such person so to be appointed 
 trustee ; and such order shall have the same effect as to lards 
 as if the convict trustee had been free from any disability, 
 and had duly executed a conveyance or assignment of his 
 estate and interest in the same. 
 
 9. That in all cases where it shall be expedient to appoint a 
 new trustee, and it shall be found inexpedient, difficult, or im- 
 practicable so to do without the assistance of the Court of 
 Chancery, it shall be lawful for the said (^ourt to make an order 
 appointing a new trustee or new trustees, whether there be 
 any existing trustee or not at the time of making such order. 
 
 [10. Enables Lord Chancellor when acting in lunacy to 
 exercise jurisdiction conferred on the Court of Chancery.] 
 
 [11. Enables Judges having jurisdiction in lunacy to exer- 
 cise powers conferred by the Act on the Lord Chancellor.] 
 
 13. That this Act shall be read and construed according to 
 the definitions and interpretations contained in the second 
 section of the Trustee Act, 1850, and the provisions of the said 
 last mentioned Act, (except so far as the same are altered by 
 or inconsistent with this Act), shall extend and apply to the 
 cases provided for by this Act, in the same way as if this Act 
 had been incorporated with and had formed part of the said 
 Trustee Act, 1850. 
 
 [13. Relates to the stamp duties payable under the Acts.] 
 
ONTARIO TRUSTEE ACT. 
 
 [177] 
 
 An Act respecting Trustees and Executors and the 
 Administration of Estates. 
 
 (R. S. 0. Cap. CVII.) 
 SUMMARY APPLICATION TO CHANCERY FOR ADVICE. 
 
 35. Any trustee, executor or administrator shall be at 
 liberty, without the institution of a suit, to apply by petition 
 to any Judge of the Court of Chancery, or by summons upon 
 a written statement to any such Judge in Chambers, for the 
 opinion, advice or direcuori of such Judge on any question re- 
 specting the management or administration of the trust prop- 
 erty or the assets of any testator or intestate. 
 
 2. Such petition or statement shall be accompanied by a cer- 
 tificate of counsel, to the effect that in his judgment the case 
 stated is a proper one for the opinion, advice or direction of 
 the Judge under this Act, and such application shall be served 
 upon, or the hearing thereof shall be attended by all persons 
 interested in such application, or such of them as the said 
 Judge thinks expedient. 
 
 3. The costs of such application shall be in the discretion of 
 the Judge to whom the application is made. 
 
 4. The trustee, executor or administrator, acting upon the 
 opinion, advice or direction given by the said Judge, shall be 
 deemed, so far as regards his own responsibility, to have dis- 
 charged his duty as such trustee, executor or administrator in 
 the subject matter of the said application ; but this provision 
 shall not extend to indemnify any trustee, executor or admin- 
 istrator in respect of any act done in accordance with such 
 opinion, advice or direction as aforesaid, if such trustee, execu- 
 tor or administrator has been guilty of any fraud or wilful 
 concealment or misrepresentation in obtaining such opinion, 
 advice or direction, 29 V., c. 28, s. 31. 
 
 The application should be by petition, re Dennis, 5 Jur. S. S. 1388 ; for form 
 of petition, see re Pett'a Will, 27 Beav. 676 ; re Miles, 27 Beav. 579. An order 
 M 
 
^N?- 
 
 e 
 
 i;; r 
 
 [178] 
 
 ONTAKIO TRUSTEE ACT. 
 
 may be made on the petition of a cestui que trust, re Ward, 14 W. B. 96 ; and of 
 one trustee without the concurrence of his co-truBt«e, re Muggeridge, Johns. 625. 
 
 It is not necessarv to serve all parties interested, unless there is a deficiency of 
 assets, re Mockett, Johns. 628. It was at ciie time held that the direction of the 
 Judge as to the parties to be served, should be obtained in the first instance, but 
 this practice has since been disapproved of, re Green 8 W. R. 403. 
 
 The Act was not intended to decide nice questions of law, but to procure for 
 trustees, at a small expense, the assistance of the Court upon points of minor im- 
 portance arising in the management of the trust, re Caldwell, 2 Ch. Ch. E 160 ; re 
 Spiller, 2 L. T. N. S. 71 ; so advice has been given as to investment, re Lorenz, 
 1 Dr. & Sm. 401 ; on payment of debts, re Box, 1 H. & M. 552. But the Court 
 will not on such a petition decide questions of detail where affidavits are required, 
 re IWrington, 1 J. & H. 142 ; nor questions of difficulty, re Simson, 1 J. & li. 89 ; 
 and see Marsh v. Att. -General, 2 J. & H. 61; nor pronounce an opinion on a 
 hypothetical case, re Box, 1 H. & M. 552. 
 
 Where questions of construction arise, a suit must be instituted, re Evans, 30 
 Beav. 232 : re Lorenz, 1 Dr. & Sm. 401 : re Hooper, 29 Beav. 656 : and see re 
 Williams, 1 Ch. Ch. R. 372. 
 
 These cases seem to overrule cases where questions of validity or construction 
 have been determined, re Michell, 28 Beav. 39 ; re Green, 8 W. R. 403 ; re Davies, 
 9 W. R. 134; re Ehnore, 6 Jur. N. S. 1325; re .Jacob, 29 Beav. 402; but see re 
 Peyton's settlement, 10 W. R. 515. 
 
 As a general rule, the conts of an application will be ordered to be paid out of 
 the corpus of the trust property, re Mc v eagh, Seton (4th ed. ) 49 ; but where the 
 question was as to the application of income, the costs were given out of the income, 
 Anon., 8 W. R. 333. 
 
 ALLOWANCE TO TRUSTEES. 
 
 36. In the four following sections the term " trustee " shall 
 include any trustee under a deed, settlement or will, and execu- 
 tors and administrators, and any guardian appointed by any 
 Court, and a testamentary guardian or any other trustee, how- 
 soever the trust is created. 37 V., c. 9, s. 1. 
 
 Before the passing of the O. S., 37 Vic, c. 9, the old rule that trustees could not 
 receive compensation was abrogated by the Surrogate Act only as regards trustees 
 under wills, Wilson v. Proudfoot, 15 Gr. 103. 
 
 37. A trustee shall be entitled to such fair and reasonable 
 allowance for his care, pains and trouble and his time expended 
 in and about the trust estate, as may be allowed by the Court 
 of Chancery, or any Judge or Master thereof to whom the same 
 may be referred. 37 V., c. 9, s. 2. 
 
 Under the provisions of the Surrogate Act, 22 Vic. o. 93. s. 47, compensation 
 could for the first time be given to an executor or administrator, ' ' for his care, 
 pains and trouble, and his time expended in or about the executorship, trusteeship 
 or administration of the estate." And the rule of the Court was to allow com- 
 pensation to trustees under a will as well as to executors, Bald v, Thompson, 17 
 Gr. 154 ; and compensation is allowed to all persons discharging the functions of a 
 trustee, re The Commissioners of the Cobourg Town Trust, 22 Gr. 377. 
 
 The rate of compensation should depend upon the amount passing through their 
 hands, and the time and labour spent by them. A commission of five per cent, on 
 all moneys received and paid over or properly expended, and half that amount on 
 the moneys received but not yet paid over, was allowed, McLennan v. Howard, 9 
 Gr. 279 ; but in Thompson v. Freeman, 15 Gr. 384, where the same allowance had 
 been made by the Master, an appeal, on the ground of excess, was allowed, and the 
 
ONTARIO TRUSTEE ACT. 
 
 [179] 
 
 B. 96 ; and of 
 e, Johns. 626. 
 
 a deficiency of 
 irection of the 
 it instance, but 
 
 t to procure for 
 8 of minor im- 
 Ch. R 150 ; re 
 ent, re Lorenz, 
 But the Court 
 ts are required, 
 I, IJ. &H.89; 
 ,11 opinion on a 
 
 id, re Evans, 30 
 )56 ; and see re 
 
 or construction 
 403 ; re Davies, 
 102 ; but see re 
 
 to be paid out of 
 ; but where the 
 it of the income, 
 
 rustee " shall 
 1, and execu- 
 nted by any 
 irustee, how- 
 
 rastees could not 
 regards trustees 
 
 reasonable 
 me expended 
 by the Court 
 lom the same 
 
 executors were given — for services rendered in the case of small sums np to 9600, 
 five per cent., and for sums above that amount, three per cent. Four per cent, 
 on aU transfers of stock and all moneys paid in and collected, held, not unreason- 
 able, Torrance v. Chewett, 12 Gr. 407 ; and where the estate was lai^e, requiring 
 great care and judgment in its management for a number of years, the Court sub- 
 tuned an allowance of $1,500 to the principal executor and trustee, and $1,500 to 
 the others jointly, Denison v. Denison, 17 6r. 306. Trustees, on assuming the 
 trust estate, are not to be allowed a commission for merely talcing the same over ; 
 but trustees properly dealing with the estate, and handing it over on the determin- 
 ation of the trust, are entitled to one commission for the receipt and proper appli- 
 cation of the estate, payable out of the corpus. Trustees are not entitled to com- 
 mission for the investment or re-investment of the funds of the estate. They are 
 entitled to commission on the receipt and payment of the income, payable out of 
 the income, and to a compensation for looking after the estate, payable out of 
 the corpru, re Berkley's Trusts, 8 Pr. R. 193. 
 
 Executors have been held entitled to compensation for services rendered before 
 the passing of the Act, 22 Vic. c. 93, McMillan v. McMillan, 21 6r. 369. 
 
 In no case will an executor be entitled to an allowance for services performed 
 by an agent, and which were so performed by him gratuitously, Chisholm v. Barn- 
 ard, 10 Gr. 479. Where an executor had retained money in his hands unemployed, 
 for which on passing his accounts he was charged with interest and rests, ne was, 
 notwithstanding, allowed commission, Gould v. Burritt, 11 Gr. 523 ; but commis- 
 sion should not in general be allowed in respect of sums which an executor did not 
 receive, but with wiiich he is chaived on the ground of wilful neglect and default. 
 Bald V. Thompson, 17 Gr. 154. An administrator is not entitled to an allowance 
 upon rents received by him, for as to them he is an intermeddler, Dagg v. Dagg, 25 
 Gr. 542. 
 
 The rule in equity, which requires that the expenses incurred by a'trustee in the 
 execution of his office shall be satisfied before the cestui que trust can compel a con- 
 veyance of the trust estate, applies to the commission or allowance to a trustee for 
 his care, pains, and trouble, Life Association of Scotland v. Walker, 24 Gr. 293 ; 
 and see Harrison v. Patterson, 11 Gr. 106. A trustee is entitled to retain his com- 
 mission from time to time out of moneys received, without waiting for the comple- 
 tion of his trust duties, Heron v. Moflfat, 7 Pr. R. 438. Where a legacy is given 
 to executors as compensation they are at liberty to claim a further sum under the 
 Statute if it is not sufficient, Denison v. Denison, 17 Gr. 306 ; such a legacy does 
 not, on a deficiency of assets, abate with legacies which are mere bounties, even 
 though the legacy somewhat exceeds what the executors would otherwise have been 
 entitled to demand, Anderson v. Dougall, 15 Gr. 405 : but in Kennedy v. Fingle, 
 27 Gr. 306, executors were held not entitled to such a legacy and also commission ; 
 and see Freeman v. Fairlie, 3 Mer. 24. 
 
 38. A Judge of the Court of Chancery may, on application 
 to him for the purpose, settle the amount of such compensation, 
 although the trust estate is not before the Court in any suit. 
 39 V. c. 9, s. 3. 
 
 17, compensation 
 r, "for his care, 
 •ship, trusteeship 
 Ei8 to allow com- 
 V. Thompson, 17 
 he functions of a 
 
 377. 
 ing through their 
 
 five per cent, on 
 
 that amount on 
 lan V. Howard, 9 
 le allowance had 
 
 allowed, and the 
 
 39. Nothing in the three preceding sections shall apply to 
 any case in which the rate of allowance is fixed by the instru- 
 ment creating the trust. 37 V. c. 9. s. 4. 
 
 Where the compensation to a trustee is fixed by the deed, the Master cannot 
 reduce the amount, Heron v. Moffatt, 7 Pr. R. 438. 
 
 40. The four next preceding sections shall apply to any 
 trust heretofore created, as well as any to be hereafter created. 
 37 V. c. 9, s. 5. 
 
ns' ^ 
 
 [180] 
 
 ONTARIO TRUSTEE ACT. 
 
 *■* • 
 
 ALLOWANCE TO EXECUTORS. 
 
 41. The Judge of any Surrogate Court may allow to the 
 executor or trustee or administrator acting under will or letters 
 of administration, a fair and reasonable allowance for his care, 
 {>ains and trouble, and his time expended in or about the exe- 
 cutorship, trusteeship or administration of the estate and ef- 
 fects vested in him under any will or letters of administration, 
 and in administering, disposing of, and arranging and settling 
 the same, and generally in arranging and settling the affairs 
 of the estate, and therefor may make an order or orders from 
 time to time, and the same shall be allowed to an executor, 
 trustee or administrator in passing his acounts. C. S. U. G. c. 
 16, s. 66. 
 
 Where a suit for the administration of an estate is pending, it is improper for 
 the Surrogate Judge to interfere by ordering the allowance of a commission to 
 trustees or executors, Cameron v. Bethune, 15 Gr. 486 ; and the Court will not 
 refer it to the Surrogate Judge to settle the compensation to be allowed, but will 
 finally dispose of the rights of all parties, McLennan v. Heward, 9 Gr. 279. Where 
 an executor, pending an account before the Master, obtained from the Surrogate 
 Judge an order fixmg his compensation, which the Master acted upon without 
 exercising his own juofgment, an appeal from the report of the Master by creditors 
 was allowed, and the executor ordered to pay the costs, Biggar v. Dickson, 15 
 Gr. 233. 
 
 l( ) 
 
CHANCERY ORDERS. 
 
 [181] 
 
 GENERAL ORDERS 
 
 OF THE 
 
 COUET OF CHANCEEY, 
 
 WRKCH BEUAIN IN FOROB NOTWITHSTANDING THE PA8SAQE Of 
 
 THE JUDICATURE ACT. 
 
 master's office. 
 
 211. Every order referring any matter to the Master is to 
 be brought into his oflBce within fourteen days after the order 
 is drawn up, or after the same should have been drawn up, by 
 the party having the carriage of the same ; otherwise any other 
 party to the cause, or any party having an interest in the 
 reference, may assume the carriage of the order, and carry the 
 same into the Master's oflBce. {3rd June, 1853 ; Order 42, s. 1.) 
 
 Under Ord. 42, s. 1, of 3rd June, 1853, the party having the carriage of the 
 decree was required to carry it into the Master's office within fourteen days after 
 the decree was pronounced, otherwise an^ other partjr might apply to the Court 
 for the carriage of the reference. The time for carrying in a decree has been ex- 
 tended, as it is sometimes impossible to have the decree in a cause heard on circuit, 
 drawn up and entered within fourteen days. The latter part of the order whicn 
 enables any party to the cause, or any part^ interested in the reference, to assume 
 the carriage of the decree without applying to the Court, where the plaintiff is 
 delaying, will it is hoped lead to greater promptness in carrying in decrees. 
 
 Where a decree has been carried into the Master's office. Order 212 providefl^ 
 that, if the party prosecuting the decree does not proceed with due diligence, the 
 Master may give the conduct of the reference to any other person interested. 
 
 212. Where a party prosecuting a reference, does not pro- 
 ceed before the Master with due diligence, the Master is at 
 liberty, upon the application of any other party interested, 
 either as a party to the suit, or as one who has come in and 
 established his claim before the Master under the order, to 
 commit to him the prosecution of the order ; and from thence- 
 forth neither the party making default nor his solicitor is to 
 
lif 
 
 [182] 
 
 CHANCERY ORDERS. 
 
 ' 1 
 
 '!"il 
 
 be at liberty to attend the ]\iaster as the prosecutor of the 
 order. (3rd June, 1853 ; Ord. 42, s. 10. 
 
 This Order is a copy of English Order 66, of April, 1828. 
 
 See Order 684 under which, where there is delay in prosecuting a reference in 
 the Master's office he may issue his warrant to the solicitors or parties interested, 
 calling upon them to shew cause why the reference should not be duly proceeded 
 with. In default of sufficient cause being shewn to excuse the delay, or upon de- 
 fault in attending up»n the return of the warrant, it is the duty of the Master to 
 certify to the Court the circumstances of the case, and thereupon the reference in 
 his office is to be deemed closed, and is not to be resumed until further order. 
 
 Previous to that order, the practice of the Court was, especially in creditor's 
 suits, in case the party wnose duty it was to prosecute a decree neglected his duty, 
 to allow a party interested as a creditor to obtain an order to prosecute in his stead, 
 Oreuze v. Hunter, 2 Yes. 157 ; Sims v. Ridge, 3 Mer. 468 ; Powell v. Walworth, 2 
 Mad. 183 ; Edmunds v. Acland, 5 Mad. 31 ; Cook v, Bolton, 5 Buss. 282 ; and the 
 Court ma^ still exercise its authority by taking the prosecution of a decree from 
 tiie plaintiff and entrusting it to another, and that even after the Master has ex- 
 ercised his judgment upon it, and has refused the application, Wyatt v. Sadler, 5 
 Sim 460. 
 
 This Order applies only to proceedings in the Master's officCj therefore a plain- 
 tiff from whom the Master has taken the conduct of the suit, is not thereby pre- 
 luded from afterwards making an application to the Court in the suit, Whitehead 
 V. North, Cr. & Ph. 78. 
 
 As to the right of the party substituted under this Order, to inspect and take 
 copies of the Driefs, documents, etc., in the possession of the party from whom 
 the carriage of the decree has been taken, see Bennett v. Baxter, 10 Sim. 417. 
 
 It is not irregular for the Master to act under this Order on the ex parte appli- 
 cation of the defendant, Stevenson v. Nicol, 14 6r. 144. 
 
 An application to compel the party having the carriage of an order made on an 
 appeal from a Master's report to proceed with the inquiry in the Master's office, 
 should be made to the Master who has possession of the case, and not in Chambers, 
 Miller v. MacNaughten, 1 Ch. Ch. B. 206. 
 
 213. Every reference is to be called on and proceeded with 
 at the day and time fixed, unless the Master in his discretion 
 thinks fit to postpone the same ; and in granting an applica- 
 tion to postpone the hearing of a reference, the Master 
 may make such order, as to the costs consequent upon such 
 postponement, as he thinks just. (3rd June, 1853 ; Ord. 42, 
 
 !1214. As soon as the Master has entered upon the hearing 
 of a reference, he is to proceed therewith to the conclusion 
 without interruption, where that is practicable ; and where 
 any reference cannot be concluded in a single day, the Master 
 is to proceed de die in diem, without a fresh warrant, unless 
 he is of opinion that an adjournment other than de die in diem 
 would be proper, and conducive to the ends of justice ; and 
 when an adjournment is ordered, the Master is to note in his 
 book the time and reason thereof. (3rd June, 1853 ; Ord. 42, 
 s. 8.) 
 
 In FallB V. Powell, 20 Gr. 468, Spragge, C, said:— "I have referred to the 
 General Orders of this Court, enabung parties to proceed continuously in th» 
 
master's office. 
 
 [183] 
 
 ecutor of the 
 
 le ex parte appli- 
 
 BfMter'i ofBoe, and making it the duty of the Masters of the Court so to proceed. 
 The obaervations that I have made as to the fitneBs of this Court to take accounts 
 between parties, and of its superior fitness in cases of a like nature to this, as com- 
 pared with a Court of law, lose much of their force, if the General Orders in relation 
 to the Master's office are not observed. I apprehend that the rules laid down are 
 too often deviated from upon insufficient grounds, to the great delay of the business 
 of the Court, and I speak the sentiments of my learned brothers, as well as my own, 
 when I say that it is the bounden duty of the Masters to observe these Orders to the 
 letter, whenever it is not impracticable to follow them literally." 
 
 215. In no case is any matter to be discontinued or ad- 
 journed for the mere purpose of proceeding with any other 
 matter, unless that course becomes necessary. (3rd June, 
 1863; Ord. 42, s. 8.) 
 
 1316. Upon the bringing in of an order, the solicitor bring- 
 ing in the same is to to take out a warrant (unless the Master 
 dispenses therewith) appointing a time, which is to be settled 
 by the Master, for the purpose of taking into consideration the 
 matters referred by the order, and is to serve the same upon 
 the parties, or their solicitors, unless the Master dispenses 
 therewith. (3rd June, 1853 ; Ord. 42, a. 2.) 
 
 817. Upon the return of the warrant to consider, or upon 
 the bringing in of the reference where the warrant is dispensed 
 with, the Master is to fix a time at which to proceed to the 
 hearing and determining of the reference, and is to regulate 
 in all other respects the manner of proceeding with the refer- 
 ence, and is to give any special directions he thinks fit, as 
 to : — (1) The parties who are to attend on the several accounts 
 and inquiries ; (2) The time at which, or within which, each 
 proceeding is to be taken ; (3) The mode in which any accounts 
 referred to him are to be taken or vouched ; (4) The evidence 
 to be adduced in support thereof; (5) The manner in which 
 each of the accounts and inquiries is to prosecuted ; and such 
 directions may be afterwards varied or added to, as may be 
 found necessary. (3rd June, 1853 ; Ord. 42, s. 2.) 
 
 This Order does not wholly exclude the jurisdiction of the Court in regulating 
 what parties are to attend before the Master. The Master having excluded trus- 
 tees ot a fund from attending before him on a question of investment, the Court 
 gave them leave to attend, Davis v. Combermere, 9 Jur. 76. It applies as well to 
 a reference upon motion, as to a decree, Woodroffe v. Tittertou, 8 Sim. 238. 
 
 Parties are at liberty, on an inquiry in the Master's office, to use all proceedings 
 which are of record in the cause, whether pleadings, or in the nature of evidence as 
 depositions of witnesses or affidavits, Daniell's Fr. (Perk, ed.) p. 1188. The 
 right to use the proceedings in the cause as evidence on a reference is subject to 
 the same rules and restrictions as govern the admissibility of evidence before the 
 Court, ii. p. 1189 ; and see Court v. Holland, ex parte Holland & Walsh, 8 Pr. E. 
 219. The Eng. Ord. 65 of 3rd April, 1828, provided : " That all affidavits which 
 have been previously made and read in Coui '; upon any proceeding in a cause or 
 matter may be read before the Master." 
 
[184] 
 
 CHANCERT OBDERS. 
 
 ? 
 
 S^ 
 
 In tftking aooounti tinder an ordinary decree Mttled aooounts are never diatnrbed 
 unless specially directed so to be, Newen v. Wetten, 31 Beav. 815. 
 
 A party may appeal from a Master's ruling, and need not wait until a report is 
 made, McDonald v. Wright, 12 Or. 652; such an appeal should be talcen within the 
 same time as is allowed for an appeal from a report, Mitchell v. Mitchell, 22 Qr. 26. 
 
 218. Where, at any time during the prosecution of a re- 
 ference, it appears to the Master, with respect to the whole or 
 any portion of the proceedings, that the interests of the parties 
 can be classified, he may require the parties constituting each 
 or any class, to be represented by the same solicitor ; and where 
 the parties, constituting such class, cannot agree upon the soli- 
 citor to represent them, the Master may nominate such solicitor 
 for the purpose of the proceedings before him ; and where any 
 one of the parties constituting such class, insists on being re- 
 presented by a different solicitor, such party is personally to 
 pay the costs of his own solicitor, of, and relating to, the pro- 
 ceedings before the Master, with respect to which such nomi- 
 nation has been made, and all such further costs as are 
 occasioned to any of the parties by his being represented by a 
 different solicitor from the solicitor so nominated. (20th Dec, 
 1865 ; Ord. 35.) 
 
 A solicSLur so appointed is authorized not only to act for auch creditors in the 
 Master's office, but also in proceedings arising out of or connected with them, such 
 as a motion in Court on behalf of the creditors, re McGonnell, 3 Ch. Ch. R. 423. 
 
 319. To enable the Master to exercise all or any of the 
 powers conferred upon him by, or to take the accounts and 
 make the inquiries referred to, in the following Orders, it shall 
 not be necessary that any of the matters therein mentioned 
 shall have been stated in the pleadings, or that evidence thereof 
 shall have been given before the order of reference, or that 
 the order shall contain any specific direction in respect thereof. 
 
 The Master has no power to relax any of the General Orders of the Court> 
 Smith V. Webster, 3 M. & 0. 244; Lloyd v. Wait, 4 M. & C. 257 ; Bertolacci v 
 Johnson, 2 Hare, 632. 
 
 SI^O. Under an order of reference, the Master shall have 
 power : — (1) To take the accounts with rests or otherwise ; (2) 
 To take account of rents and profits received, or which, but for 
 wilful neglect or default, might have been received ; (3) To 
 set occupation rent ; (4) To take into account necessary repairs, 
 and lasting improvements, and costs and other expenses prop- 
 erly incurred otherwise, or claimed to be so ; (5) To make all 
 just allowances ; (6) To report special circumstances ; (7) 
 And generally, in taking the accounts, to inquire, adjudge, and 
 report as to all matters relating thereto, as fully as if the same 
 had been specially referred. (3rd June, 1853 ; Ord. 42, s. 13*), 
 
^■■K 
 
 master's office. 
 
 [186] 
 
 ver dlstnrbad 
 
 This section confers upon the Master much larger powers, in many respects, 
 than even a Judge in (/hambers in England possesses. It has no English original, 
 «nd is confined to the practice of our own Court. Order 142 of April, 1843, Is th« 
 foundation upon which it rests, but altered by the removal of certain restriotionH. 
 That order provided that the accounts to be taken by the Master, should be taken 
 according to the laws and practice of the Court of Chancery. This limitation in 
 strictness of language was perhaps unnecessary, as all accounts must have been, and 
 must be taken in that manner, but it was not an unmeaning safeguard and was a 
 plain intimation to the Master of his duty, and the mode of pursuing it. And 
 there was a proviso that claims for improvements should not be entertamed unless 
 a case was made upon the pleadings for them. 
 
 Upon all the matters of account mentioned in this section, a case must be made 
 before the Master, such as, under the former practice, required to be made upon 
 the pleadings, to authorize the Court to make a decree upon them. 
 
 As to taking an account with rests, see Coldwell v. Hall, 9 Gr. 110 ; re Ami- 
 strong, Inglis V. Beaty, 2 App. R. 453. 
 
 As to taking evidence and reporting facts as to advances for infants, and as to 
 allowing for tneir maintenance under the common administration order, see 
 Stewart v. Fletcher, 17 Gr. 235 ; Feilder v. O'Hara, 2 Ch. Ch, R. 255. 
 
 */d21. Under an order of reference, witnesses may be examined 
 before any examiner of the Court ; and foreign commissions 
 for ths examination of witnesses without the jurisdiction of 
 the Court, may, on the certificate of the Master, be issued by 
 the Clerk of Records and Writs upon praecipe. (3rd June, 1853; 
 Ord. 42, s. 14.) 
 
 A Master has jurisdiction to direct evidence to be used on an inquiry before him, 
 to be taken before any other Master, though not consented to, re Casey, 1 Ch, Ch. 
 B. 198 ; a oertificato for a foreign commiusion cannot be granted ex parte, McLennan 
 V. Helps, 3 Ch. Ch. R. 193. 
 
 3553. The Master may cause parties to be examined, and to 
 produce books, papers and writings, as he thinks fit, and may 
 determine what books, papers and writings are to be produced, 
 a.nd when and how long they are to be left in his office ; or in 
 case he does not deem it necessary that such books and papers 
 or writings should be left or deposited in his office, he may 
 give directions for the inspection thereof, by the parties re- 
 quiring the same, at such time and in such manner as he deems 
 expedient. (3rd June, 1853 ; Ord. 42, s. 14.) 
 
 An order to produce documents involves an order to leave them, if the Master 
 thinks fit 80 to direct, Sidden v. Liddiard, 1 Sim. 388 : Shirley v. Earl Ferrers, 1 
 M. &C.304. 
 
 The Court leaves it to the Master to decide whether the documents are to be 
 produced from time to time, or to be deposited, Henna v. Dunn, 6 Mad. 340. 
 
 As to the Master's certificate of default, see Harris v. DeTastet, 1 S. & S. 263,; 
 Askew V. Peddle, 10 Sim. 182. 
 
 As to form of certificate, see Sutherland v. Rogers, 2 Ch. Ch. R. 191 : Bennett's 
 Mas. Off. app. 30. 
 
 Where the Master directed the production of all books, etc, connected with one 
 of the subjects of the reference, ancf none of them being produced, a four day order 
 obtained upon a certificate that the parties had been duly summoned to produce all 
 books, etc., relating to the matters in question in this suit, was discharged, Stubbs 
 V. Molineux, 4 Beav. 646. 
 
rf. 
 
 [186] 
 
 CHANCERY ORDERS. 
 
 After decree, a defendant can compel production by a co-defendant, Hart v. 
 Montefiore, 10 W. R. 97. 
 
 !3!33. The Master may cause advertisements for creditors; 
 and if he thinks it necessary, but not otherwise, for heirs or 
 next of kin, or other unascertained persons, and the represen- 
 tatives of such as are dead, to be published as the circumstan- 
 ces of the case require ; and in such advertisements he is to 
 appoint a time within which such persons are to come in and 
 prove their claims, and within which time, unless they so come 
 in, they are to be excluded from the benefit of +he decree. 
 (3rd June, 1853 ; Ord. 42, s. 14.) 
 
 Ae to advertisements in administration suits, see Ord. 475. Where an execi'*or 
 has advertised for creditors under R. S. O. c. 107, s. .34, no further advertisement 
 need be issued in an administration suit, Cuthbert v. Wharmby, Seton, (4th ed.) 
 805, 829; W. N. (1869) p. 12. 
 
 224. The Master is to proceed on the claims brought in be- 
 fore him pursuant to such advertisement, without further notice, 
 and may examine witnesses in relation thereto at the time ap- 
 pointed in the advertisement, or thereafter, as he sees fit ; and 
 ho is to allow or disallow or adjourn the claims as to him seems 
 just. (3rd June, 1853 ; Ord. 42, s. 11.) 
 
 As to the mode of proceeding upon claims in administration suits, see Ord. 467 
 et stq. 
 
 In a creditor's suit the plaintiff must prf^ve his claim in the Master's oftice, and 
 each creditor may dispute the claims of tlie others. Field v. Titmus, 1 Sim. N. S. 
 218 ; Owens v. Dickenson, Or. & Ph. 48. 
 
 Where unde.^ a common administration order a cred'tor applies to prove a debt 
 barred by lapse of time, if the executor does not take the objection, any other 
 party interested may do so, Shewen v. Vanderhorst, 1 R. & M. 347 ; on app. 2 R. 
 & M. 75 , Moodja r. Bannister, 4 Drew. 432 ; Fuller v. Redman (2), 26 Beav. 614 ; 
 Jardine v. Woo-^^ 19 Gr. 618. An executor may retain his own debt, though 
 barred by the statute. Crooks v. Crooks, 4 Gr. 615; and see Sander v. Heathfield, 
 Jj. R. 19 Eq. 21 ; even in vhe lifetime of the testa*;or, Hill v. Walker, 4 K. & J. 
 166. An executor de son tort cannot retain for his own debt, or give that in evi- 
 dence under plene administravit, Wms. on Ex'ors. (8th ed. ), 273, 1051 ; but if even 
 ^vdente lite he obtain administration he may, Ibid. 273. The right of retainer 
 IS Lot lost by a decree being made for administrsition. It may be asserted at 
 any time before the assets are distributed, Stahlschmidt v. Lett, 1 Sm. & G. 415. 
 In Coomljs v. Coombs, L. R. 1 P. & D. 288, the Court gave administration to a 
 creditoi whose debt was barred by statute, inserting in the bond a clause that he 
 would dibtribute the estate ratably. 
 
 Althougi? the time had elapsed, creditors were allowed to come in so long as the 
 fund was in Court, Lashleyv. Hogg, 11 Ves. 602 ; after deficient assets apportioned 
 among creditors, aiid transferred to the accountant-general for payment to them, 
 another creditor allowed to come in on payment of consequent costs, Angell v. 
 Haddon, 1 Madd. 529. 
 
 A creditor coming in after long delay every defence against his claim allowed 
 as on a new bill, and undistributed part of the assets liable only proportionally, 
 Greig v. Somerville, 1 R. & ^I. 338 ; creditor coming in after some legatees paid, 
 and fund carried to account of th e rest, entitled to a proportional part only or th? 
 latter, G"»spie v. Alexander, 3 Russ. 130. 
 
master's office. 
 
 [187] 
 
 dant, Hart v. 
 
 creditors; 
 ►r heirs or 
 
 represen- 
 ircumstan- 
 & he is to 
 )me in and 
 ey so come 
 he decree. 
 
 re an execi'*or 
 advertisement 
 eton, (4th ed.) 
 
 ight in be- 
 ther notice, 
 le time ap- 
 les fit ; and 
 him seems 
 
 ■», see Ord. 467 
 
 ter's office, and 
 1, 1 Sim. N. S. 
 
 ;o prove a debt 
 ion, any other 
 
 ; on app. 2 K. 
 
 26 Beav. 614 ; 
 I debt, though 
 • V. HeathfieM, 
 ker, 4 K. & J. 
 vt) that in evi- 
 1 ; but if even 
 ght of retainer 
 be asserted at 
 
 Sm. & G. 415. 
 nistration to a 
 
 clause that he 
 
 1 so long as the 
 ets apportioned 
 ment to them, 
 osts, Angell y. 
 
 claim allowed 
 proportionally, 
 I legatees paid, 
 »art only of tl'i> 
 
 Claim disallowed by chief clerk in one suit, is not barred in another, Teed v. 
 Beere, 5 Jur. N. S. 381 ; 7 W. R. 394. 
 
 A claimant in an administration suit, may be cross-examined upon his affidavit 
 in support of his claim, Cast v. Poyser, 3 Jur. N. S. 38 ; 26 L. J. Ch. 353. 
 
 In an administration suit a creditor brought in a claim for a large amount, 
 against which the administratrix alleged there was a set oS. The claim and set 
 off having been fully gone into, the Riaster found that the creditor was really a 
 large debtor to the estate, and so reported. On the hearing on further directions 
 the claimant was ordered to pay into Court, to the credit of the cause, the amount 
 which had been found due by the Master, re Lloyd, Ogilvy v. Lloyd, V. C. 
 Blake, Mar. 1881. 
 
 11225. The costs of proving such claims are, in the discre- 
 tion of the Master, to be allowed to the creditors proving the 
 same, and added to their debts respectively, or to be disallowed. 
 And in case of their being allowed, they may be allowed in 
 gross in place of taxed costs. (3rd June, 1853 ; Ord. 42, s. 11.) 
 
 A creditor is entitled to the costs of establishing his debt ; and the Court has 
 jurisdiction to order pajrment of costs, by a creditor failing to prove his claim. 
 Hatch V. Searl 2 Sm. & G. 147; 2 W. R. 297; Yeoman v. Haynes, 24 Beav. 
 127 ; Colyer v. Iyer, 10 W. R. 748. 
 
 The power b^ven to the Master to allow a gross sum in lieu of taxed costs, does 
 not afiect the costs of the creditor who is plaintiff in the suit, FlintoS v. Haynes, 
 4 Hare, 309. 
 
 Where the fund is insufficient the costo are added to the debts and with them 
 apportioned, Morshead v. Reynolds, 21 Beav. 638. 
 
 226. Under every «.?lc"r whereby the delivery of deeds or 
 execution of conveyances is directed, the Master is to give 
 directions as to the delivery of such deeds, and to settlo con- 
 veyances where the parties differ, and to give directions as to 
 the parties to the conveyances, and as to the execution thereof. 
 (3rd June. 1853; Ord. 42, s. 14.) 
 
 In a suit for specific performance, (Cartv. ight v. Ross, 8th April, 1873,) where a 
 question arose as to the subsequent cost^' of preparing and settling a lease, V. C. 
 Strong 8f«Id: — "I have considered the question, and the result is as follows : The 
 conveyance is always prepared by the purchaser at his own expense, unless there is 
 a stipulation to the contrary, and there is none here ; the vendor has, hi^wever, to 
 bear the expense of execution and perusal. The usual decree in specific performance 
 suits is that the conveyano be settled by the Master in case the parties differ, and 
 no distinction is made in the decree in such cases between the co"*'" of settling con- 
 veyance and the other costs, where the costs are given. I take it, therefore, to be 
 the practice that, as a general rule, in all such cases the Master taxes the costs 
 having regard to the practice in conveyancing to which I have adverted, requiring 
 the purchaser to prepare the conveyance, and the vendor to execute it, each at his 
 own expense, and that the decree does not make any special disposition of thusn 
 costs." 
 
 _ Where, in consequence of some of the parties being infants, a conveyance which 
 might otherwise hi ■ been settled between the parties, was necessarily referred to 
 a Master, the costs of such reference, were ordered to be borne bv the infants' estate, 
 Rodgers v. Rodgers, 2 Ch. Ch. R. 241 ; Brown v. Lake, 15 L. J. Ch. 34. 
 
 Under number 5 of the standing conditions of sale of the Court of Chancery, a 
 purchaser, where the sale is on credit, must prepare the mortgage at his own expense, 
 Fahner v. Ran. 1 Ch. Ch. R. 246 ; and must pay the fees for its registration, Sweet- 
 nam v. Sweetnam, 6 Pr. R. 83. The purchaser makes a sufficient tender of the 
 conveyance for execution by delivering it to the vendor's solicitor; and it is the 
 duty of the vendor to procure its execution by all necessary parties, Weiss v. Crofts, 
 d Pr. R. 151. 
 

 li 
 
 I 
 
 I) 
 
 
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 1 !»' 
 
 is 
 
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 ^. 
 
 1 M 
 
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 '■1 i 
 
 [188] 
 
 CHANCERY ORDEBS. 
 
 221. Where any account is to be taken, the accounting 
 party is, unless the Master otherwise directs, to bring in the p' /i.e 
 in the form of debtor and creditor, verified by amda , . The 
 items on each side of the account are to be numbered consecu- 
 tively, and the account is to be referred to by the affidavit tls 
 an exhibit, and not to be annexed thereto. (3rd June, 1853 ; 
 Ord. 42,s,6.) 
 
 Where accounts are brought in in an improper form, a party who has acquiesced 
 therein cannot afterwards set them aside, Weale v. Bice, C. P. Cooper, 438. 
 
 228. The Master, if bethinks fit, may direct that in takiriff 
 accounts, the books of account, in which the accounts required 
 to be taken have been kept, or any of them, be taken as prima 
 facie evidence of the truth of the matters therein contained, 
 with liberty to the parties interested to iaks such objection 
 thereto as they may be advised. (3rd June, 1853 ; Ord.42, s. 2.) 
 
 This section app'.ies onl^ where the vouchers have been Tost and the accounts 
 cannot be taken in vhe ordinary way ; such directions will not be given merely to 
 save expense, nor when ordinary evidence can be hnd, Lodge v. Pritchard, 3 
 D. M. & G. 906. Tti3 books of a partnership are prima Jacie evidence against each 
 partner, and, there/ore also for any of them against the others, Linoley, Lodge 
 r. Pritchard, supi-a. 
 
 Accoimts taken in a suit in Jamaica ordered to be taken as trrUna facie evidence, 
 Sleight V. Lawson, 3 K. & J. 292 ; and see Stainton v. Carron Co . , 24 Reav. 346. 
 
 Where the books of a manufactory, of which the plaintiff was manager, were 
 kept by the defendant, the Court held that the contents, though not binding on the 
 plaintiff, might, as he had free access thereto, be taken as prima facie evidence 
 against him, with liberty to him to surcharge and falsify, Ogden v. Battams, 1 
 Jur. N. S. 7S1 : and see Banks v. Cartwright, 15 W. R. 417 ; Hardwick v. Wright, 
 15 W. E, 953. 
 
 Where a solicitor was ordered to deliver a bill of costs, an agreement for the 
 payment of a fixed 'um being set asfJe, V. C Stuart refused to direc that entries 
 made by him several ytars before, imd conti^u^poraneous with the trantjactiona, 
 should be taken as prima facie evidence, Coleman v. Mellersh, 2 Mac. & Gr. 309. 
 
 229. No states of facts, charges, or discharges, are to be 
 brought into the Master's office , and where original deeds or 
 documents can be brought in, no copies are to be made ^.ithout 
 special direction. (3rd June, 1853 ; Ord. 42. s. 5.) 
 
 2«:50. Where directed copies, abstracts of, or extracts from 
 accounts, deeds, or other documents and pedigrees, and concifee 
 statements, are to be sup])Hed ; and where so directed, copies 
 are to be delivered as the Master may direct. (3rd June, 1853; 
 Ord. 42, s. 5.) 
 
 231. A party directed by the Master to bring in any 
 account, or do any other act, is to be held bound to do the same 
 in pursuance of the direction of the Master, without any war- 
 rant or written direction being served for that purpose. (3rd 
 June, 1853; Ord. 42, s. 2.) 
 
MASTER S OFFICE. 
 
 [189] 
 
 232. Before proceeding to the hearing and determining of 
 a reference, the Master may appoint a day in the meantime, if 
 he thinks fit, for the purpose oi entering into the accounts and 
 inquiries, with a view to ascertain what is admitted and what 
 is contested between the parties. (3rd June, 1853 ; Ord. 42, 
 8. 2.) 
 
 233. Where the Master has omitted to appoint a day for 
 the purposes mentioned in Order 232, he may grant to the 
 party bringing in accounts a warrant to proceed on the same, 
 for the purposes aforesaid ; such warrant to be underwritten, 
 as follows : " On leaving the accounts of, tfec. ; and take notice 
 that you are required to admit the same, or such parts thereof 
 as ycu can properly admit." (3rd June, 1853 ; Ord. 42, s. 3.) 
 
 234. Where it becomes necessary to adduce evidence, or 
 to incur expenses otherwise, in establishing or proving items 
 of account, or other matters which in the judgment of the 
 Master oight, under all the circumstances, to have been 
 admitted by the party sought to be charged therewith, and 
 which the party has refused to admit, the Master, before mak- 
 ing his report, is to proceed to tax such costs, occasioned by 
 such refusal, as shall appear to him reasonable and just, and 
 shall state in his report the amount of such costs and how the 
 same were occasior ed. (3rd June, 1853 ; Ord. 42, s. 3.) 
 
 235. The party to whom costs are payable under Order 
 234, is to be entitled, upon the Master's report becoming 
 absolute to tLf» process of the Court to compel payment thereof 
 as in other case3. (3rd June, 1853 ; Ord. 42, s. 3.) 
 
 236. Where the party entitled to receive the general costs 
 of the cause is the party ordered to pay costs under Order 
 234, he is at liberty to deduct such costs from the general costs, 
 where the general costs and the interlocutory costs, are between 
 the same parties. (3rd June, 1853 ; Ord. 42, s. 3.) 
 
 237. A party seeking to charge an accounting party beyond 
 what he has in his account admitted to have rtceived, is to 
 give notice thereof to the accounting part} , stating so fax as he 
 is able, the amount so audght to be charged, and the particulars 
 thereof m a short and succinct maimer. (3rd June, 1853 ; 
 Ord. 4?., s. 7.) 
 
 An accounting party who files an affidavit verifying his account, if ho is cioas- 
 exAmined on such affidavit h entitled to notice oi the points on which he in to ht 
 oross-examinad, re Lord, L. R. 2 Eq. 605 ; Wormsley v. Sturt, 22 Boav. 398. 
 
In, i. 
 
 [190] 
 
 CHANCERY ORDERS. 
 
 3 
 
 Ni:'-«! f.l 
 
 238. The Master is to keep in his office a book, to be called 
 the "Master's Book," in which, upon the bringing in of an 
 order of reference, are to be entered, the style of the cause, the 
 name of the solicitor prosecuting the reference, the date of the 
 order being brought in, and the proceedings then taken ; and 
 the Master is also to enter therein, from tinr . to time, the pro- 
 ceedings taken before him, and the directions which he gives 
 in relation to the prosecution of the reference or otherwise. 
 (:3rd June, 1853 ; Ord. 42, s. 4.) 
 
 The Master's office is not a public court which any person may entor, but is 
 simply a private room, see re Western Canada Oil Lands and Works Company, 
 Limited, 25 W. R. 78r ; Wright y. Wilkin, 6 W. R. 648 ; a special examiner has 
 power tt exclude witnesses from his room during an examination, and he may exer- 
 cise sucii power when the witness is a party to the suit ; a refusal to comply and 
 not withdrawing when ordered to do so, is a contempt of court, Sadleir v. Smith, 
 14 U. C. L. J. 30. 
 
 Upon the examination of two defendants before a Master, he, at the request of 
 their solicitor, directed two other defendants present on behalf of the plaintiff, who 
 was too ill to attend, to v/ithdraw, but they refused ; the Master thereupon declined 
 to proceed with the examination : — Held, that the Master should have allowed one 
 defendant to be present on behalf of the plaintiff., if he was satisfied that this was 
 required for the proper representation of his interest, but by analog}' to R. S. O. 
 c. 50, s. 260, he might require such defendant to be examined first, if he was to be 
 called as a witness, Sivewright v. Sivcwright, 8 Pr. R. 81. 
 
 239. Upon the application of any person, the Master is 
 to certify, as shortly as he conveniently can, the several pro- 
 ceedings iiad in his office in any cause or matter, and the dates 
 thereof. (3rd June, 1853 ; Ord. 42, s. 9.) 
 
 This Order is somewhat diflerent in its language from the Order of 3rd June, 
 1853. By the latter Order the certificate could be obtained only upon applica- 
 tion being made to the Court, and then, only by the person making the applica- 
 tion. 
 
 Affidavits cannot be read to contradict the certificate of an officer of the Court, 
 Foley V. Griffith, 2 Moll. 318 ; Beavan v. Burgess, 10 Jur. 63. 
 
 As to form of certificate of default in not bringing accounts or documents into 
 the Master's office, see Sutherland v. Rogers, 2 Ch. Ch. R. IDl ; Bennett's Ma«. 
 Off. app. 30 
 
 3 40. In giving directions, and in regulating the manner of 
 proceeding before him, the Master is to devise and adopt the 
 simplest, most speedy, and loast expensive method of prose- 
 cuting the roference, and eveiy part thereof ; and with that 
 view, to ilisponse with any proceedings ordinarily taken, but 
 which he conceivos to be unnecessary and to shorten the 
 periods for taking any proceedings ; or to substitute a differ- 
 ent course of proceedings for that ordinarily taken. (3rd June, 
 1863 ; Ord. 42, s. 2.) 
 
 241. Where the Master directs parties not in attendanc(3 
 before him, to be notified to attend at some future day, or for 
 
^r 
 
 MASTER S OFFICE. 
 
 [191] 
 
 different purposes at different future days, it shall not be 
 necesnary to issue separate warrants, but the parties shall be 
 notified by one appointment, signed by the Master, of the pro- 
 ceedings to be taken, and of the timess by him appointed for 
 taking the same. (29th June, 1861,) 
 
 The form of a Master's warrant is : — 
 In Chancery. 
 
 A I/. B. 
 
 By virtue of an Order of Reference, I appoint to consider of the matters there- 
 by to me referred, on at of the clock noon at my 
 Chambers in and let all parties tnen attend. Date<l, etc. 
 
 The form of a general appointment issued under this Order is as follows : — 
 In Chancery. 
 
 A z/. B. 
 
 By virtue of an Order of Reference, I do appoint the several days and times 
 hereunder written f(<f the several purposes also hereunder written, at my Chambers, 
 in at which time and place all parties co cerned are to attei>d. Dated, 
 
 etc. 
 
 !34!3. Where parties are notified by appointment from the 
 Master, of proceedings to be taken before him, no warrants 
 are to be, issued m to such parties, in relation to the same pro- 
 ceedings. (29th June, 1861.) 
 
 1343, Parties making default upon such appointments, are 
 to be subject to the same consequences as if warrants had been 
 served upon them. (29th June, 1861.) 
 
 244. Where in proceedings before the Master, it appears to 
 him that some persons not already parties ought to he made 
 parties, and ought to attend, or be enabled to attend the pro- 
 ceedings before him, he may direct an office-copy of the decree 
 to be served upon such parties ; and upon due service thereof, 
 such parties are to be treated and named as parties to the suit, 
 and are to be bound b}'^ the decree in the same raannei* as if 
 they had been originally made parties. (3rd June, 1853 ; Ord. 
 42, s. 15.) 
 
 This order applies only to cases in which it becomes necessary to add persons as 
 parties in the Master's office. In proceeding upon a reference under a decree, the 
 Master cannot under G. O. 244, 245, order a person to be made a party against 
 whom any relief is sought ; and where in proceeding imder a decree for the admiii- 
 intration of a testator's estate, the Master directed one, D. , who had been in part- 
 nership with the testator up to the time of his death, (« bo made a party, and 
 required him with the executors to bring in under oath an account of the partner- 
 ship dealings, against which D. appealed : — Held, that the object of making D. a 
 party was for the purpose either of relief or discovery, and in either view the 
 plaintiff could not obtain it in this mode of proceeding, as 1)., so far as discovery 
 was concerned, could only be regarded as a witness, Hop[jert^. Harrison, 28 (ir. 22. 
 
 The orders as to service on persons interested, but not necessarily parties (see 
 English V. English, 12 Gr. 441, Rodgers v. Rodgers, 13 Gr. 457), of an office-coj)y 
 of the decree so as to bind them are as follows ; — 
 
 Order 58. It shall not be competent to a defendant to take an objection for want 
 of parties in any case to which the seven rules nex ).°reinu'tii- set forth apply. 
 (:<rd Jime, 18P3 ; Ord. 6, s. 2.) 
 
[192] 
 
 CHANCERY ORDERS. 
 
 il ' -^ 
 
 lii 
 
 i t,!, • 
 
 Rule 1. — A residuary legatee, or next of kin, may have a decree for the admin- 
 istration of the personal estate of a deceased person, without serving the remaining 
 residuary legatees or next of kin. (Imp. Act 15 & 16 V., c. 86, s. 42, r. 1.) 
 
 Rule 2. — A legatee interested in a legacy charged upon real estate ; or a person 
 interested in the proceeds of real estate directed to be sold, may have a decree for 
 the administration of the estate of a deceased person, without serving any other 
 legatee or person interested in the proceeds of the estate. (Imp. Act 15 and 16 V. 
 0. 86, s. 42, r. 2. 
 
 Rule 3. —A residuary devisee or heir, may have the like decree, without serving 
 any co-residuary devisee or co-heir. 
 
 Rule 4. — One of several cestuis que trust, under a deed or instrument, may have 
 a decree for the execution of the trust of the deed or instrument, without serving 
 any other of such cestuis que trust. (Imp. Act 15 & 16 V., c. 86, s. 42. r. 4.) 
 
 Rule 5. — In all cases of suits for the protection of property pending litigation, 
 and in all cases in the nature of waste, one person may move on behalf of himself, 
 and of all persona having the same interest. (Imp. Act. 15 & 16 Y., c. 86, s. 42, r. 5.) 
 
 Rule 6. — An executor, administrator, or trustee, may obtain a decree against 
 any one legatee, next of kin, or cestui que trust, for the administration of the estate,^ 
 or the execution of the trusts. (Imp. Act. 15 & 16 V., c. 86, s. 42, r. 6.) 
 
 Rule 7. — An assignee of a chose in action may institute a suit in respect thereof 
 without making the assignor a party thereto. 
 
 Order 59. In all the above cases the Court, if it sees fit, may require any other 
 person to be made a party to the suit, and may, if it sees fit, give the conduct of 
 the suit to such person iw it deems pro{)er ; and may make such order in any par- 
 ticular case as it deems just for placing? tue defendant on the record on the s.-^me 
 footing in regard to costs as other parties having a common interest with him in 
 the matter in question. (3rd June, 1853 ; Ord. 6, s. 2.) (Imp. Act 15 & 16 V., c. 
 86, B. 42,r. 7.) 
 
 Order 60. In all the above cases the persons who, according to the practice of 
 the Court, would be necessary parties to the suit are to be served with au office 
 copy of the decree (unless the Court dispenses with such service) endorsed with the 
 notice set forth in schedule A, hereunder written, and after such service they shall be 
 bound by the proceedings in the same manner as if they had been originally mat^e 
 parties to the suit ; and upon service of notice upon the plaintiff, they may a'.tend 
 the proceedings under the decree. Any party so served may apply to the Court to 
 Tad to, vary, or set aside the decree, within fourteen days from the date of such 
 service. (3rd June, 1853 ; Ord. 6, s. 2.) 
 
 The schedule A is as follows :- "Take notice, that from the time of the service 
 hereof, you {or, as the case may be, the infant, or person of unsound mind) will be 
 bound by the proceedings in this cause in the same manner as if you {or, the Mid 
 infant, or person of unsound mind) had been originally made a party to the suit : 
 and that y a {or, the said infant, or person of unsound mind) luay, upon service of 
 notice upon the plaintiff, attend the proceedings under the within decree ; and that 
 you {or, the said infant, or person of unsouiid mind) may, within fourteen days after 
 the service hereof, apply to the Court to add lo, vary, or set reside the said deuce ; 
 A. B., of the City of Toronto, in the County of York Plaintiff's Solicitor. " 
 
 This rule as to serving parties applies to infants, Clarke v. Clarke, 20 L. T. 88 ; 
 and to parties out of the jurisdiction, Chalmers v. Laurie, 10 Hare, app. 27 ; May- 
 bery z/. Brooking, 7 D. M. & G. 673 ; Strong v. Moore, 22 L. J. Ch. 917. 
 
 In an administration suit by a residuary legatee, other residuary legatees, served 
 with notice of the decree and having I iberty to attend the proceedings, will not be 
 allowed their costs of attending the taking of the accounts, unless the plaintiff and 
 the accounting defendant employ the same jolicitor, and in that caae will be allowed 
 one set of costs between them, Daubney v. Leake, L. R. 1 Eq. 4©5. 
 
 Persons who at the date of the decree had no interest in the suit cannot be 
 brought before the Court under this order, Oolyer v, Colyer, 11 W. R. 355. 
 
 Where a party served with an office copy of the decree feels aggrieved thereby, 
 he should move, upon notice, for leave to present a petition in the nature of a bill 
 of review, Kidd v. Cheyne, 18 Jur. 348 ; he may appeal against the decree, Ellison 
 V. Thomas, 1 D. J. & S. 18. 
 
 As to dispensing with service, see Ord. 587. 
 
MASTER S OFFICE. 
 
 [193] 
 
 without serving 
 
 245. The office copy of a decree directed to be served under 
 Order 244, is to be endorsed with a notice to the effect set 
 forth in schedule L to these Orders, with such variations as 
 circumstances require. (3rd June, 1853 ; Ord. 42, s. 15.) 
 
 The Schedule L is as follows : 
 
 To A. B., (the person upon whom terviee has been directed. ) (Set out the order. ) 
 
 If you wish to apply to discharge the foregoing order, or to add to, vary, or set 
 aside, the decree, you must do so within fourteen days from the service hereof. 
 {When the wder fixes a time for the further proceedings, add,) And if you fail to at- 
 tend at the time and place appointed, either in person or by your solicitor, such 
 order will be made and proceedings taken, in your absence, as may seem just and 
 expedient ; and you will be bound by the decree, and the further proceedings in 
 the cause, in the same manner as if you had been originally been made a party to 
 the suit, without any further notice. 
 
 246. A party served with an office copy of a decree under 
 Order 244, may apply to the Court, at any time within four- 
 teen days from the date of such service, to discharge the order, 
 or to add to, vary, or set aside the decree. (3rd June, 1853 ; 
 Ord. 34, s. 7.) 
 
 The time of vacation is not reckoned in the computation of the fourteen days, 
 Ord. 408. The Court has jurisdiction in a proper case to entertain an application, 
 after the expiration of the fourteen days, Stewart v. Hunter, 2 Ch. Ch. II. 265. 
 
 247. As soon as the hearing of any matter pending before 
 the Master is completed, he shall so inform the parties to the 
 reference then in attendance, and make a note to that effect 
 in his book and after such entry no further evidence is to be 
 received, or proceedings had, without the special permission of 
 the Master ; and the Master may proceed to prepare his report 
 or certificate without farther v arrant, except the warrant to 
 settle, which is to be served on the parties, as the Master 
 directs. (Crd June, 1853 ; Ord. 42, s. 16.) 
 
 " As to the rule laid down by the Master, that to open a case and let in new 
 evidence, the applicant must make such a case as would entitle him to a new 
 trial, I Consider the rule to be a very good one, and hope the Master will act up to 
 it, except in very exceptional cases," per Strong V. 0. in Waddell v. Smyth, 3 Ch 
 Cn. R. 412. See 1 Graham & Waterman 462, ct seq., as to granting a new trial oi 
 the ground of newly discovered evidence. 
 
 on 
 
 248. Parties are to raise before the Master, in respect of any 
 matter presented in his office, for his decision, all points which 
 may afterwar<ls be raised upon api^eal ; and in case an appeal is 
 allowed on any ground not distinctly taken before the Master, 
 the Court may order the appellant to pay the costs of the ap- 
 peal. (Gth Feb., 1865 ; Ord. 36.) 
 
 Permitting appeals without objec'/ions being previously taken, was a great in- 
 justice to the Masters of the Court as on many occasions objections were taken 
 and argued before the Cou>^ on the appeal, which, had they been brought under the 
 
[194] 
 
 CHANCERY ORDERS. 
 
 li'' r 
 
 (;i: ! 
 
 notice of the Master, would have led him to re-oonsider his decision, and induced 
 him to come to a dinerent conclusion from that at which he did arrive. As objec- 
 tions are the foundation for exceptions, and the latter must strictly^ follow the 
 objections, great attention is required in framing them, so that the points may be 
 properly brought before the Court, Ballard v. White, 2 Hare, 1I>8. 
 
 In England the practice was that there should be four days hettveen the issuing 
 of the warrant " to sign the report " and the return, to rJIow the opposing or 
 other parties time to object to the draft of the report, if so advised. Where parties 
 were dissatisfied with the Master's finding, and were advised to bring that finding 
 more particularly before the Court, they had then four days allowed them to bring 
 in objections to the draft of such report ; and unless those objections were carried 
 in, the Court would not afterwards allow a party to except to the report, unless 
 under very special circumstances, Noel v. Ward, 1 Madd. 339 ; Pennington v. Lord 
 Muncaster, 1 Madd. 555 ; Wood v, Lambirth, 9 Sim. 195. Where permission given 
 to file exceptions, where no objections to the draft report brought in before the 
 Master, the party depending upon the chance of his appeal to the Court seeking 
 delay, though the objections are allowed, yet the party, for the neglect and occa- 
 sioning trouble to the Court, shall pay such costs as ttie Court thinks reasonable, 
 Bowker v. Nickson, 3 Madd. 439 ; leaving objections not mere form, but to enable 
 the Master to reconsider his opinion, Ibid. 
 
 Where, from the nature of the case, the Master considers it proper to allow the 
 party further time to prepare and bring in his objections, he does so, on his being 
 attended by the parties on a warrant taken out for that purpose, by the party re- 
 quiring time. As to objections generally, see Ottey v. rensam, 1 Hare, 322. 
 
 349. In the Master's reports no part of an account, charge, 
 affidavit, deposition, examination, or answer, brought in or 
 used in the Master's office, is to be stated or recited, but, in- 
 stead thereof, the same may be referred to by date or other- 
 wise, so as to inform the Court as to the paper or document so 
 brought in or used. (3rd June, 1853 ; Ord. 42, s. 12.) 
 
 The Master's leport is prima facie evidence of what it contains, unless appealed 
 from, Nichols v, McDonald, 6 Gr. 594. It should generally speaking be confined to 
 results, unless the Master is directed by the decree to state his reasons, and then 
 he should do so briefly, McCargar v. McKinnon, 15 Gr. 370. 
 
 A Master's report should bear date the day it is actually signed, and a Local 
 Master cannot sign his report until the costs are finally revised and settled. Wad- 
 dell V. McCoU, 14 Gr. 211. 
 
 350. Reports affecting money in Court, or to be paid int.. 
 Court, are to set forth in hgures, in a schedule, a brief summary 
 of the suras found by the report, and which may be paid or 
 payable, into, or out of Court. (10th Sept. 186G ; Ord. 16.) 
 
 351. As soon as the Master's report or certificate is pre- 
 pared, it is to be delivered out to the party prosecuting the 
 reference, or in case he declines to take the same, then, in the 
 discretion of the Master, to any other party applying therefor ; 
 and a common attendance is to be allowed to the party taking 
 the same. (3rd June, 1853 ; Ord. 42, s. IG.) 
 
 252. A report is to become absolute, without an order con- 
 firming the same, at the expiration of fourteen days after tli* 
 
master's office. 
 
 [196] 
 
 I decision, and Induced 
 3 did arrive. As objec- 
 (luat strictly follow the 
 
 that the points may be 
 ire, li)8. 
 
 lays V;etween the issuing 
 to f Jlow the opposing or 
 3 advised. Where parties 
 ed to bring that finding 
 ya allowed them to bring 
 e objections were carried 
 pt to the report, unless 
 339 ; Pennington v. Lord 
 
 Where permission given 
 rt brought in before the 
 lal to the Court seeking 
 or the neglect and occa- 
 Oourt thinks reasonable, 
 mere form, but to enable 
 
 Jers it proper to allow the 
 he does so, on his being 
 .urpose, by t^^e PF*y "" 
 ensam, 1 Hare, 322. 
 
 ' an account, charge, 
 iwer, brought in or 
 d or recited, but, in- 
 to by date or other- 
 aper or document so 
 i. 42, 8. 12.) 
 
 t contains, unless appe^ed 
 illy speaking be confined to 
 ■Estate his reasons, and then 
 370. 
 
 aally signed, and a Local 
 ■^revised and settled, Watl- 
 
 , or to be paid int>. 
 ule, a brief summary 
 ich may be paid or 
 )t. 186G ; Ord. 16.) 
 
 or certificate is pre- 
 Eirty prosecuting the 
 ,he same, then, in the 
 ty applying therefor; 
 d to the party takmg 
 C.) 
 
 without an order con- 
 irteen days after the 
 
 filing thereof, unless previously appealed from. (29th June, 
 1861.) 
 
 But see now Ord. 642, and note to Ord. 253. 
 
 Reports which did not require confirmation were, of the necessity of a commin- 
 sion, of scandal or impertinence, appointing receiver or consignee, on passing their 
 accounts, computing subsequent interest, apportioning a fund, appointing trustees, 
 approving a conveyance, and certificates of something done or not done or mis- 
 done, 1 Grant's Chy. Pr. (5th ed.) 339. 
 
 263. An appeal shall lie to the Court, upon motion, at any 
 time after the signing of the report until the expiration of 
 fourteen days from the filing of the same, in respect of the 
 finding of the Master upon any matter presented in his ofiice 
 for his decision, without written olyections or exceptions being 
 previously taken. (29th June, 1861.) 
 
 This order differs from the original order of the 21st June, 1861, by providing 
 for an appeal without written objections being taken ; as to taking objections, see 
 Ord. 248, and notes. 
 
 By Order 542 the time for appealing has been altered, and dates from the 
 making and not the filing of the report. No report which requires confinnation, 
 therefore, would now become absolute until a month had elapsed from its date, and 
 fourteen days from its filing, re Eaton ; Byers v. Woodbum, 8 Pr. R. 289, The 
 cases which follow in this note, and in which fourteen days are spoken of, are still 
 applicable, with the exception that the time is now one month instead of the four- 
 teen days. 
 
 If any of the parties are dissatisfied with the Master's report, an appeal from it 
 may be brought at any time within fourteen days after it is filed and the service of 
 a notice of motion by way of an appeal within the fourteen days will prevent the re- 
 port being confirmed, although the appeal may not be heard till after the expiring 
 of the fourteen days, Grimshawe v. Parks, 6 U. C. L. J. 142. 
 
 When the fourteen days have been allowed to pass without serving notice of 
 appeal, the Court may, under special circumstances, give leave to appeal ; but such 
 leave can be obtained only upon motion, notice of which must be given. Cozens v, 
 McDougal 1 Ch. Ch. R. 29 • Larkin v. Armstrong, 1 Ch. Ch. R. 31; Cade v. New- 
 hall, 1 Ch. Ch. R. 200 ; ana as to what should be shewn on such an application, 
 see Thompson v. Walker, 1 Ch. Ch. R. 266. The Court will not extend time 
 merely on account of ignorance of practice, Blaylock v. McFark.ie, 15 C. L. J. 137. 
 
 A party having delayed for one day beyond the time allowed for appealing, the 
 other side, instead af moving to set aside the proceeding, served notice of a cross 
 appeal, it was held that the irregularity was thereby waived, Larkin, v. Armstrong, 
 1 Ch. Ch. R. 31. 
 
 Where the Master made a clerical error in his report, apparent on the face of it, 
 the Court made an order correcting the report or the ex parte application of the 
 plaintiff. White v. Courtney, 1 Ch. Ch. R. 11 ; Watson v. Moore, 1 Ch. Ch. R. 266; 
 but where the Master, in proceeding to take an accoimt under a decree on further 
 du-ections, finds he has made a mistake in taking the accounts under the original 
 decree, he is noi at liberty to correct such mistake by his subsequent report. The 
 Master having, without the order of the Court, reviewed his first report, and cor- 
 rected by his subsequent report an error found in the first, it was held that he had 
 exceeded his jurisdiction, and that the objection being apparent on the face of the 
 report, the objecting party was not driven to appeal, Crooks v. Street, 1 Ch. Ch. 
 J-v. 78. 
 
 The Master's report is prima facie evidence of what it contains, unless appealed 
 from, and no motion founded on such report can be entertained while the appeal is 
 unheard, Nichols r. McDonakl, 6 Gr. ft<J4. 
 
 All ajmlications in the nature of an appeal from a Master's judgment should be 
 miule in Court and not in Chambers, Ledyard v. McLean, 1 Ch. Ch. R. 183 ; Jay 
 
[196] 
 
 CHANCERY ORDERS. 
 
 J 
 
 l-l 
 
 i^i^ 
 
 V. Macdonell, 2Ch. Oh. R. 71 ; and see Gould v. Burritt, ICh. Ch. R. 260. As to 
 •pportioning costs where some grounds of appeal fail and others succeed, see Baijc 
 ol Montreal V. Ryan. 13 Gr. 204. 
 
 There may, in a proper case, be an appeal from the Master's ruling as to the 
 admissibility of evidence, before the Master makes his report, McDonald v. Wright, 
 12 Gr. 562. 
 
 Where an incumbrancer who objected to the order of priority in which he was 
 placed, appealed from the iindhig of the Master, the Court considered this the more 
 convenient form to adopt, although it was open to him, to have moved to discharge 
 the Master's order, McDonald v, Rodger, 9 Gr. 76. 
 
 Where a party appealed from a report and some of the grounds of appeal were 
 allowed, and the report referred back to be reviewed, an appeal will not he against 
 the further report tnereon, for matters disposed of by the nrst report and not ob- 
 jected to on the appeal, Ross v. Perrault, 13 Gr. 206. 
 
 Where a reference back to the Master to review his report is directed, the Mas- 
 ter is of course at liberty to receive further evidence ; where the Court does not 
 mean that he shall take further evidence, the order contains a direction to that ef- 
 fect, unless the reference back is expressed to be for a purpose on which further 
 evidence could not be material, Morley v. Matthews, 12 Gr, 453. 
 
 As to appeals since the Judicature Act, see 0. XLIX., r. 13, ante. 
 
 1354. Any party affected by a report may file the same, 
 or a duplicate thereof, and the filing of a duplicate shall have 
 the same effect as the filing of the report. (29th June, 1861.) 
 
 255. Where the master is directed to appoint money to be 
 paid at some time and place, he is to appoint the same to be 
 paid into some bank at its head office, or at some branch or 
 agency office of such bark, to the joint credit of the party to 
 whom the same is made payable, and of the Registrar of the 
 Court ; the party to whom the same is made payable to name 
 the bank into which he desires the same to be paid, and the 
 Master to name the pla^ for such payment. (29th June, 1861.) 
 
 This Order is an extension of the Order of 29th June, 1861, which provided for 
 the payment of mortgage money only at a bank. 
 
 By Order 569 the word "Accountant" was substituted for " Registrar " in this 
 and the next following order, and by Order 628 all General Orders of the Court in 
 which the word "Accountant" occurred, were to be read and construed as if the 
 words " Referee in Chambers " were substituted for the word " Accountant." 
 
 Where before the day for payment the agency of the bank was closed, on motion 
 to substitute another bank at the same place, it was held that a new day for pay- 
 ment must be fixed, and the order served. King v. Connor, 1 Ch. Ch. R. 274. 
 
 256. Where money is paid into a bank, in pursuance of 
 such appointment, the party paying may pay the same either 
 to the credit of the party to whom the same is made payable 
 or i» the joint credit of the party and the Registrar ; and if 
 the same be paid to the sole credit of the party, such party 
 shall be entitled to receive the same without the order of the 
 Court. (29th June, 1861.) 
 
 As to costs of obtaining an order for payment of the money, see Bernard v. 
 AUey, 2 Ch. Ch. R. 91. 
 
 
, 250. As to 
 eed, see Bank 
 
 ling as to the 
 aid V. Wright, 
 
 which he was 
 \ this the more 
 ad to discharge 
 
 if appeal were 
 
 not lie against 
 
 rt and not ob- 
 
 icted, the Mas- 
 
 Oourt does not 
 
 tion to that ef- 
 
 which further 
 
 nte. 
 
 e the 8ame, 
 shall have 
 June, 1861.) 
 
 noney to be 
 same to be 
 e branch or 
 ;he party to 
 strar of the 
 ible to name 
 aid, and the 
 . June, 1861.) 
 
 lich provided for 
 
 jgistrar " in this 
 1 of the Court in 
 latrued as if the 
 ccountant." 
 
 closed, on motion 
 ew day for pay- 
 Ch. R. 274. 
 
 pursuance of 
 ; same either 
 aade payable 
 strar; and if 
 y, such party 
 order of the 
 
 y, see Bernard v. 
 
 '^F 
 
 RECEIVERS. 
 
 [197] 
 
 357. "Where default is made in the payment of money ap- 
 pointed to be paid into a Bank, the certificate of the Cashier, 
 Manager or Agent of the Bank, where the same is made pay- 
 able, or of the like bank oflBcer, shall be sufficient evidence of 
 default. Where the affidavit of the party entitled to receive 
 the same is by the present practice required, the same shall • 
 still be necessary. (29th June, 1861.) 
 
 The Bank certificate of non-payment should be made by the cashier or other like 
 officer, the certificate of the accountant, as such, is not sufficient, Campbell v. Gar- 
 ret, 1 Ch. Ch. R. 265. 
 
 RECEIVERS. 
 
 378. The party prosecuting the order for a receiver is to 
 obtain an appointment or a warrant from the Judge or Master, 
 and to serve tne same on all the necessary parties, naming in the 
 copy thereof served the proposed receiver and his sureties. 
 (3rd June. 1853 ; Ord. 38, s. 1.) 
 
 As to the powers of the Court in appointing receivers, see Judicature Act, s, 17, 
 8ub-s. 8. 
 
 379. At the time appointed, the party prosecuting the order 
 is to bring into the Judge's Chambers or the Master's Office, 
 the recognizance or bond proposed as security ; the bond or 
 recognizance is to be to the Master. (3rd June, 1853 ; Ord. 
 38, s. 1.) 
 
 Evidence must be produced before the Master as to the nature and value of the 
 property over which the receiver is to be appointed, in order that the amount for 
 which security is to be given may be fixed. 
 
 380. Any other party desirous of proposing another person 
 as reeceiver, is to serve notice of his intention so to do upon 
 the other parties, naming in such notice the person proposed 
 by him as receiver, and his sureties, and is then in like manner 
 to bring into the Judge's Chambers or Master's Office, the 
 recognizance or bond proposed by him as security. (3rd June, 
 1853 ; Ord. 38, s. 1.) 
 
 381. At the time named in the appointment or warrant the 
 Judge or Master is, in the presence of the parties, or those who 
 attend, to consider of the appointment of the receiver, and to 
 determine respecting the same ; and to settle and approve of 
 the proposed security. (3rd June, 1853 ; Ord. 39, s. 1.) 
 
 A trustee may in some cases be a receiver, if he will act without emolument, 
 Sykes v. Hastings, 11 Ves. 363 ; but no one who is a party to the suit, or solicitor, 
 can be receiver with emolum^|^, unless no one else can be got to act, Garland v. 
 
 Garland, 2 Ves. 137 ; W Jolland, 8 Ves. 72; the next friend of an infant 
 
 Cftnnot be receiver. Stone v, Wishart, 2 Madd. 64. 
 
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 IMAGE EVALUATION 
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 WnSTIk,N.Y. I4SM 
 
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 [198] 
 
 CHANCERY OBDEBS. 
 
 S8I3. The Master is to make no report approving of or ap- 
 pointing the receiver ; but the Judge or Master is to appoint 
 such receiver by signing a written appointment to the follow- 
 effect, viz. : " In Chancery, [style of cause] — I hereby appoint 
 [receiver's name] receiver in this cause [signatv/re of Judge or 
 Master] ;" which appointment is to be signed without any 
 warrant or attendance for that purpose. (3rd June, 1853^ 
 Crd. 38, s. 1. 
 
 Where an order directs the appointment of a receiver the Master, if the order 
 contains no direction on the subject, is to fix the time or times in each year when 
 the person appointed is to ^aaa his accounts and pay his balances into Court, and 
 in default of compliance with such direction the person appointed may, on the ■ 
 passing his accounts, be disallowed any salary or compensation for his services, and 
 may be charged with interest upon his balances, Ord. 588. 
 
 1383. When signed, the appointment is to be filed by the 
 party who has procured the person named by him as receiver 
 to be appointed, and is then to have the same effect as the 
 filing of the Master's report appointing a receiver under the 
 former practice ; but the same is not to be filed until after the 
 execution and filing of the securities settled and approved by 
 the Judge or Master. (3rd June, 1853 ; Ord. 38, s. 1.) 
 
 A receiver is an indififerent person between the parties, appointed by the Court 
 to receive the rents, issues and profits of lands, or any other thing in question 
 pending the suit, where it does not appear reasonable to the Court that either party 
 should do it ; or where a party is incompetent to do so, as in the case of an infant. 
 The appointment of a receiver rests in the discretion of the Court, Skip v. Harwood, 
 3 Atk. 664 ; Owen v. Homan, 3 Mac. & €r. 378 ; and when appointed he is treated 
 aa the officer and representative of the Court, and is subject to its orders. A re- 
 oeiverj though an officer of the Court, stands in the position of trustee to all inter- 
 ested in the estate or fund ; therefore in making the appointment the Court will 
 endeavour to select a person unexceptionable to all parties, not only on the score of 
 fitness and competency, but also as regards the feeling of friendship or dislike be- 
 tween the person proposed and those with whom he, in the discharge of his duties, 
 will be brought into frequent communication, Simpson v. Ottawa and Prescott 
 Railway Company, 1 Ch. Ch. R. 99. 
 
 A receiver having been appointed, it ia the duty of the party^ to the record in 
 possession of the property to deliver up possession to him, and if be refuses to do 
 so, an order may be obtained upon motion Uiat he do by a given day deliver up 
 possession to the receiver, Griffith v. Griffith, 2 Yes. Sen. 400. Where the property 
 is in the possession of tenants the order usually directs them to attorn and pav 
 their rents in arrear, as well as the growing rents, to the receiver, Simmons v. La. 
 Kinnaird, 4 Yes. 747. The receiver should apply to the tenants to attorn, and if 
 any of them refuse, the party obtaining the appointment of the receiver should 
 serve them with a copy of the order granting the receiver and of the certificate of 
 his appointment, and with a notice of motion for an order that they do attorn 
 within four days after service of the order or stand committed, Reid v. Middleton, 
 T. & R. 466 ; and the Court will order the tenants to pay the costs of this motion, 
 Hobson V. Sherwood, 19 Beav. 675 ; but see Hobhouse v. HoUcombe, 2 D. & Sm. 
 
 ace. 
 
 Any attempt to distorb the possession of the receiver, without the leave of the 
 Court Deing first obtained, is a contempt on the part of the person making it, Angel 
 V. Smith, 9 Yes. SS6 ; Russell v. East Anglian RaU. Co., 3 Mao. & G., 104 ; and 
 this rule extends to cases in which the receiver is amointed without prejudice to 
 the right of persons having prior estates ; and see S^kk of British North America 
 V. Heaton, 1 Ch. Ch. R. 175. If such persons wish to avail themselves of their 
 
g of or ap- 
 to ajppoint 
 the follow- 
 by appoint 
 f Judge (yr 
 tthout any 
 one, 1853; 
 
 r, if the order 
 wh year when 
 ito Court, and 
 mayj on the 
 8 servicea, and 
 
 led by the 
 as receiver 
 Feet as the 
 
 under the 
 il after the 
 )proved by 
 1.) 
 
 I by the Court 
 >g in question 
 it either party 
 ie of an infant. 
 V. Harwood, 
 
 1 he is treated 
 orders. A re- 
 ee to all inter- 
 the Court will 
 m the score of 
 ' or diRlike be- 
 ) of his duties, 
 
 and Prescott 
 
 the record in 
 refuses to do 
 iy deliver up 
 ' the property 
 orn ana pay 
 imons V. Lti. 
 ttom, and if 
 Jeiver should 
 certificate of 
 ley do attorn 
 '. Middleton, 
 this motion, 
 
 2 D. & Sm. 
 
 leave of the 
 ing it. Angel 
 \; 104 ; and 
 prejudice to 
 rth America 
 ves of th^ 
 
 RECEIVEBS. 
 
 [199] 
 
 right, they must appi/ to the Court either for liberty to bring ejectment, or in the 
 mode now aubstituted for the old examination fro interaie mo, Bryan v. Cormick, 
 1 Cox, 422 ; even though their right to possession is clear, Anon, 6 Yes. 287 ; and 
 even although the order appointing the receiver is erroneous, Ames v. Birkenhead 
 Dock Trustees, 20 Beav. 332. 
 
 The receiver's salary is generally fixed upon the passing of his first account, 
 when he is allowed in his discharge a percentage upon his receipts by way of salary 
 for his care and trouble. The usual peroentag^e upon rents and profits of real estate 
 h five per cent, on the ^ss rental ; out this is the maximum. He may be entitled 
 to allowances beyond his salary for any extraordinary trouble or expense he has 
 been put to in the performance of his duty. Potts v. Leighton, 15 Ves. 276 ; but 
 the Court will not sanction such allowances, if objected to, unless he has had the 
 previous approbation of the Court for what he has done, re Ormaby, 1 B. & B. 189 : 
 Malcohn v. O'Callaghan, 3 M. & C. 62 ; Bristow v. Needham, 2 Phill. 190 ; and 
 see Simpson v. Ottawa and Prescott Railway Company, 1 Ch. Ch. B. 99. 
 
 After tenants have attorned or paid rents to the receiver, he may distrain for 
 rent in arrears ; and he may in the case of a tenant from year to year, who has 
 attorned, give notice to determine the tenancy. Doe v. Read, 12 East 69 ; but he 
 cannot bring ejectment without the sanction of the Court, Wynne v. Ld. Xewburgh, 
 1 Ves. 164. 
 
 Where a receiver finds it necessary to sue for debts due an estate, an application 
 for permission to do so must be made, supporte** by affidavits shewing the expediency 
 of such proceedings. Thorns v. Torrance, 1 Ch. Ch. R. 9. 
 
 It is the duty of a receiver to pass his accounts regularly in the manner pre- 
 scribed by the order under which he is api>ointed, and if he does not, he may be 
 deprived of his salary, and charged with interest on the balance in his hands. 
 Ward V. Swift, 8 Hare, 139. If a receiver does not bring in his accounts at the 
 proper time, the party desiring them to be brought in may claim a warrant for 
 that pui'i)08e, and upon default he may have an attachment against the receiver. 
 When the receiver brings in his accounts, but does not proceed upon them, the party 
 prosecuting the decree takes out a warrant to proceed upon the accounts and serve 
 all necessary parties ; if the receiver does not attend on the return of the warrant 
 to support his accounts, the Master allows all the sums with which he has charged 
 himsell, and disallows his payments for want of being vouched, Bertie v. Ld. Ab- 
 ingdon, 8 Beav. 63. 
 
 To enforce payment of the balance reported due, an order should be obtained 
 upon notice, for hint to pay the amount within a given time, Davies v. Cracraft, 
 14 Ves. 143 ; and if the order be not complied with, a writ of fi, fa. may be issued, 
 and the recognizance or bond put in suit. An order must be obtained for leave to 
 sue upon the bond, and if the sureties are to be proceeded agaiust, notice 
 of motion must be served upon them, Ludgater v. Channell, 15 Sim. 482. 
 
 The sureties for a receiver cannot be discharged at their own request, Griffith v. 
 Griffith, 2 Ves. Sen. 400 ; Gordon v. Calvert, 2 Sim. 253 ; but this rule will yield 
 to circumstances, as where underhand practice is proved, and the person secured is 
 shewn to be connected with it, Hamilton v. Brewster, 2 Moll. 407. On moving to 
 vacate a receiver's recognizance, notice must be given to all parties. Brown v. 
 Perry, 1 Ch. Ch. R. 253. With respect to the sureties' liability, it extends to all the 
 receiver would be liable to pay, Dawson v. Raynes, 2 Rusp. 466. 
 
 Where a surety of a receiver dies pending the suit, the receiver may obtain, ex 
 parte, an order referring it to the Master to <iT>prove or a new one, Baldwin v. Craw- 
 fona, 1 Ch. Ch. R. 264. 
 
 Where a receiver made an investment unauthorized by t\e Court, by which a 
 profit was made, the amount realized was directed to be added to the principal, 
 Baldwin v. Crawford, 2 Ch. Ch. R. 9. 
 
 SALES. 
 
 3*74:. Where a sale is to take place under an order of the 
 Court, no copy of the order, or any part thereof, is to be brought 
 into Chambers, or the Master's office, but the original order is 
 
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 [200] 
 
 CHANCERY ORDEBS. 
 
 to be used, unless the Judge or Master requires a copy. (3rd 
 June, 1853; Ord. 36. s. 1.) 
 
 375. An appointment or warrant in respect of the sale is 
 to be obtained from the Judge or Master, and served upon all 
 necessary parties. (3rd June, 1853 ; Ord. 36, s. 2.) 
 
 376. At the time appointed thereby, the party having the 
 conduct of the sale, is to bring into Chambers, or the Master's 
 office, a draft advertisement, but no particulars or conditions of 
 the sale, or any draft or copy thereof. (3rd June, 1853 ; Ord. 
 36, s. 3.) 
 
 Usually the plaintiff has the conduct of the sale, Dale v. Hamilton, 10 Hare, 
 app. 7 ; though the Court may give it to another, in a proper case, as where plain- 
 tiff had liberty to bid, Dixon v. Fsmer, 14 Jur. 218 ; see Knott v, Cottee, 27 Beav. 
 33. When a sale is asked by a defendant in a foreclosure suit, the Court may re- 
 quire the party asking it to conduct the sale at his own expense, Ord. 430 ; but see 
 Taylor v. Walker, 3 Gr. 506. 
 
 Where property has been put up for sale under an order of the Court^ but the 
 sale has proved abortive for want of bidders, the property may be advertised^ and 
 put up for sale again without further order, Sherwood v. Campbell, 1 Ch. Cn. B. 
 299 ; Martin v. Purdy, 1 Ch. Ch. R. 263. 
 
 377. The advertisement is to contain the following parti- 
 culars :— '(1) The short style of cause ; (2) That the sale is in 
 pursuance of an order of the Court ; (3) The time and place of 
 sale ; (4) A short and true description of the property to be 
 sold ; (5) The manner in which the property is to be sold, 
 whether in one lot or several, and if in several, in how many, 
 and what lots ; (6) What proportion of the purchase money is 
 to be paid down by way of deposit, and at what time or times, 
 and whether the residue of such purchase money is to be paid 
 with or without interest ; (7) Any particulars in which the 
 proposed conditions of sale differ from the standing conditions. 
 (3rd June, 1853 ; Ord. 36, s. 4.) 
 
 Advertisements for stdes under the direction of the Court should be as short as 
 possible ; the short stjrle of the cause and a short description of the property and 
 improvements is sufi&cient, and no merely formal parts, such as convey no informa- 
 tion to intending purchasers, should be inserted, Baxter v. Finlay, 1 Ch. Ch. B. 230 ; 
 Buchan v. Wilks, Ibid, 231, n. An advertisement for the sale of property under 
 a decree should set out all the improvements on the property, otherwise it will be 
 referred back to the Master to re-settle the advertisement, and appoint a new day 
 for the sale, Heward v. Bidout, 1 Ch. Ch. B. 244. 
 
 Misdescription in the advertisement, where it amounts to a material represen- 
 tation, is ground for compensation, even after convevance. Bull v. Harper, 6 Pr. R. 
 36. An inadequate description of the property in the adver'^isement will be a suf- 
 ficient ground for opening biddings, if calculated to mislead or deter the public 
 from purchasing, but not otherwise. Exceptions of this kind- amounting (mly to 
 a complaint that all the advantages of the property have not been sufficiently dwelt 
 upon in the advertisement, should be taken upon the settling of the advertisement, 
 Greswick v. Thompson, 6 Pr. R. 52. The omission to state that the premises are 
 Ik ed advantageously will afford good ground for staying the sale, but an applica- 
 
 I 
 
SALES. 
 
 [201] 
 
 y. (3rd 
 
 le sale is 
 upon all 
 
 ving the 
 Master's 
 litions of 
 53; Ord. 
 
 n, 10 Hare, 
 irhere plain- 
 ie, 27 Beav. 
 urt may re- 
 30 ; but see 
 
 irt, but the 
 ertiaecL and 
 Ch. Ch. R. 
 
 ng parti- 
 sale is in 
 
 place of 
 rty to be 
 
 be sold, 
 •w many, 
 money is 
 or times, 
 ) be paid 
 hich the 
 nditions. 
 
 as short as 
 operty and 
 no informa- 
 Ch. R. 230 ; 
 erty under 
 e it will be 
 a new day 
 
 .1 represen- 
 er, 6 Pr. R. 
 11 be a suf- 
 the public 
 ng only to 
 ently dwelt 
 ertisement, 
 'emisea are 
 m applica- 
 
 -tion for such purpose should be made ]>romptIy and before the sale, MoAlpine v. 
 Young, 2 Ch. Ch. R. 171. Where an irregularity had occurred in advertising, but 
 no injmy had thereby accrued, and a fair price bad been obtained, the sale was 
 ^confirmed, Cayley v. Colbert, 2 Ch. Ch. R. 455. 
 
 378. At the time named in the appointment or warrant, 
 the Judge or Master is to settle the advertisement ; to fix. the 
 time and place of sale ; to name an auctioneer, where one is 
 to be employed ; and to make every other necessary arrange- 
 ment preparatory to the sale, so that nothing may remain to 
 be done but to insert the advertisement ; and all the before- 
 mentioned matters must be done at one meeting, namely, upon 
 the return of the appointment or warrant, where it is practi- 
 cable ; and no adjournment of such meeting is to take place, 
 and no new meeting is to be appointed for the aforesaid pur- 
 poses, unless it is unavoidable. (3rd June, 1853; Ord. 36, 
 .8. 5.) 
 
 379. The standing conditions of sale are to be those set 
 forth in schedule P. (3rd June, 1853 ; Ord 36, s. 13.) 
 
 Schedule P. is as follows : — 
 
 1. No person shall advance less than $10 at any bidding under $500, nor less 
 than $20 at any bidding over $500, and no person shall retract his bidding. 
 
 2. The highest bidder shall be the purchaser ; and if any dispute arise as to 
 the last or highest bidder, the property shall be put up at a former bidding. 
 
 3. The parties to the suit, with the exception of the vendor, (and, naming any 
 parties, trustees, agents, or others, in a fiduciary sittuUion,) are to be at liberty to 
 
 4. The purchaser shall, at the time of sale, pay down a deposit, in the propor- 
 tion of $10 for every $10U of his purchase money, to the vendor or his solicitor ; 
 and shall pay the remainder of the purchase money, on the day 
 of next ; and upon such payment, the purchaser shall be entitled to the 
 conveyance, and to be let into possession ; the purchaser, at the time of sale, to 
 sign an agreement for the completion of the purchase. 
 
 5. The purchaser shall have the conveyance prepared at his own expens nd 
 tender the same for execution. 
 
 6. If the purchaser fails to comply with the conditions aforesaid, or any of 
 them,^ the deposit and all other payments made thereon, shall be forfeited, and the 
 premises may be re-sold ; and the deficiency, if any, by such re-sale, together with 
 all charges attending the same, or occasioned by the defaulter, are to be made good 
 by the defaulter. 
 
 Under number five of these conditions, a purchaser, when the sale is on credit, 
 must prepare the mortgage at his own expense, Fahner v. Han, 1 Ch. Ch. R. 246 ; 
 and he must also pay the fees for its registration, Sweetnam v. Sweetnam, 6 Pr. R. 
 83. The purchaser makes a suflScient tende of the conveyance for execution, 
 by delivering it to the vendor's solicitor ; and it is the duty of the vendor to pro- 
 cure its execution by all necessary parties, Weiss v. Crofts, 6 P. R. 15L 
 
 380. The Judge or Master may, without further order, fix 
 «.n upset price or reserved bidding, where it is thought ex- 
 pedient; but this must be done at the meeting before mentioned, 
 and it must be notified in the conditions of sale. (3rd June, 
 1853; Ord. 36, s. 7.) 
 
 :i 
 
 ill 
 
[202] 
 
 CHANCEBY ORDERS. 
 
 Where the plaintiff on the settlement of the advertisement neglected to ask for 
 a reserved bidaintr. and the advertisvment was issued, liberty to have a reserved 
 bid was given in Chambers, and the advertisement altered accordingly, Fraaer v. 
 Bens, 1 Ch. Ch. B. 71. 
 
 Whether the reserved bidding should be communiAted to the parties or not, is 
 in the Master's discretion, Jervoise v. Clarke, IJ. & W. 391. 
 
 ■x: 
 
 
 381. All parties may bid, without taking out an order for 
 the purpose, except the party having the conduct of the sale, 
 and except any trustees, agents and other persons in a fiduciary 
 situation; and where any parties re to be at liberty to bid, it 
 must be notified in the conditioi.s of sale. (3rd June, 1858 ; 
 Ord. 36, s. 7.) 
 
 38 !3. The advertisement is to be inserted by the party con- 
 ducting the sale, at such times and in such manner as the 
 Judge or Master appointed at the meeting before mentioned. 
 (3rd June, 1853 ; Ord. 36, s. 6.) 
 
 383. The Master or his Clerk is to conduct the sale where 
 no auctioneer is employed. (3rd June, 1853; Ord. 36, s. 7.) 
 
 384. Biddings need not be in writing, but a written agree- 
 ment is to be signed by the purchaser at the time of sale. (3rd 
 June, 1853 ; Ord. 36, s. 7.) 
 
 A solicitor having the conduct of a sale, cannot withdraw the property offered 
 after a bid has been made, McAlpine v. Young, 2 Ch. Ch. R. 85 ; upon a sale with- 
 out reserve, it ie not open to the vendor to refuse a bid, however small, O'Connor 
 V. Woodward, 6 Pr. R. 223. 
 
 385. The deposit is to be paid to the vendor, if present, or 
 if not, to his solicitor, at the time of sale, and is to be forth- 
 with paid by him into Court. (3rd June, 1853 ; Ord. 36, s. 7.) 
 
 Where the party having the conduct of the sale, neglects to pay into Court the 
 deposit paid to him by the purchaser at the time of sale, the Court will, on the ap- 
 puoation of the purchaser, order him to do so, Crooks v. Glenn, 1 Ch. Ch. B. 3M. 
 
 386. After the sale is concluded, the auctioneer, where one 
 is employed, is to make the usual affidavit according to the 
 
 S resent practice; and where no auctioneer is employed, the 
 [aster or his Clerk is to certify to the same efiect. (3rd June. 
 1853; Ord.36, 8. 7.) 
 
 387. The report on sale is to be in the form set forth in 
 schedule Q, or as near thereto as circumstances permit. 
 Schedule Q is as follows : — 
 
 In Ghanoxbt (Style of Cau$e). — Pursuant to the decree {or order) of this Hon- 
 ourable Court, beanng date the day of , and made in this oause^ 
 
SALES. 
 
 [208] 
 
 
 I have, under the General Orders of this Ooort, in the presence of (or, after notiee 
 to) all parties oonoemed, settled an advertisement and particulars and conditions 
 of sale, for the sale of the lands mentioned or referred to in the said decree (or 
 order), and such advertisement having, according to my directions, been published 
 in the {^fuminff the newipt^per or netoipaper$), once in each « ?ek for the weeks 
 
 immediately preceding the said sale (ora$the ease tnay be), and bills of the said sale 
 having been also, as directed bv me, published in different parts of the township 
 (town or eitv) of and the adjacent country and villages, {nraithe case may 
 
 he), the said lands were offered for sale by public auction, according to my appoint- 
 ment, on the day of , by me (or by Mr. of , appointed by 
 me for thatpurpou, auctioneer,) and raoh sale was '■caducted in a fair, open, and 
 proper manner, when , of , was declared the hi^jhest bidder for, and 
 became the purchaser of the same, at the price or sum of $ , payable as fol- 
 lows (set oui shortly the condition of sale as to payment of the purchase money). 
 
 All which, having been proved to my satisfaction by proper and sufficient evi- 
 dence, I hiunbly certify to this Honourable Court. Dated 
 
 The confirmation of a sale may be opposed before the Master, and the sale dis- 
 allowed on grounds which would afford material for a motion to set aside the sale, 
 Beaty v. Badenhurst, 3 Gh. Ch. R. 844. 
 
 When a sale has been held, and the Master's directions have not been followed, 
 th<^ vendor must show, at his own expense, that no person linterested has been 
 injured by the non-observance of the directions ; otherwise the sale will not be 
 coatirmed. Royal Canadian Bank v. Dennis, 4 Ch. Ch. 68 ; a motion in Chambers 
 to canfirm a sale where an irregularity has occurred will not be entertained, unless 
 the sale has been approved of by the Master, Thomas v. McCrae, 2 Ch. Ch. 456. A 
 purchaser at a sale under a decree has a right to take out the report on sale and get 
 it confirmed, so as to obtain a completion of thepurchase to himself, at least where 
 he is the sole purchaser. Crooks v. Olet, 1 Ch. Ch. 354. 
 
 388. A sale must be objected to by motion to the Court to 
 set aside the same ; and notice of the motion must be served 
 upon the purchaser, and on the other parties to the cause; 
 but the biddings are only to be opened on special grounds, 
 whether the application is made before or after the report 
 stands confirmed. (3rd June, 1853 ; Ord. 36, s. 10 ; 20bh Dec 
 1865 ; Ord. 21.) 
 
 Where one of the testator's sons bid at a Chancery sale of his father's property, 
 such bidding being by those present supposed to be for himself, but being in reality 
 for another person, who had secretly employed the son to bid under the expectat'on 
 that there would be less competition against the son than against a stranger, and 
 the property was knocked down to the son, but the contract w ,s signed by the 
 principal, and it appeared that the effect of the son's bidding, had been to deter 
 others from bidding, the Court holding this to be a surprise on the other bidders 
 and an unjust advantage to the purchaser, rerused to enforce the purchase, and 
 directed a re-sale at the risk and cost of the purchaser, Bodgers v. Bodgers, 13 Gr. 
 143. 
 
 The Court is strongly disinclined to open biddings unless very special grounds 
 are shewn. The fact alone that a price can be obtained in advarce upon that 
 realized at the sale, does not constitute such a special ground, Creswick v. Thomp- 
 son, 6 Pr. R. 62 : biddings will not be opened merely upon the offer of an advanced 
 price, whether the purchaser at the sale is a stranger to the suit, or a party allowed 
 Dv an order of the Court to bid, Mitchell v. Mitchell, 6 Pr. R. 232 ; and see 
 McRoberts v. Durie, 1 Ch. Ch. R. 211; Crooks v. Crooks, 2 Ch. Ch. R. 29. 
 
 Biddings will not be opened and the sale set asido on the ground that a party 
 (the defenoant) was prevented from bidding by promises made to him by the pur- 
 chaser; such fact, if established, would constitute the purchaser a trustee for him, 
 and would be subject for a suit, Brock v. Saul, 2 Ch. Ch. R. 145. 
 
 A purchaser at a sale under a decree is not bound by any irregularity in the 
 proceedings so as to cause him to lose the benefit of his purchase, Dickey v. Heron, 
 1 Ch. Ch. R. 149. 
 
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 [204] 
 
 CHANCERY OBDERS. 
 
 389. At any time after the confirmation of the sale the 
 purchaser may pay his purchase money and interest, if any, 
 or the balance thereof, into the Court without fiurther order, 
 upon notice to the party having the conduct of the sale ; and 
 wnen he is entitled to be let into possession of the estate, 
 he may, if possession is wrongfully withheld from him, proceed 
 at his own expense to obtain an order against the party in 
 possession for the delivery thereof to him, or may call upon 
 the vendor to cause possession to be delivered to him. (3rd 
 June, 1853; Ord.36, s. 11.) 
 
 Where money is ordered to be paid into Court, a payment to the solicitor of the 
 party entitled to it is not a good one, and therefore is no ground for dispensing 
 with payment into Court, Blackburn v. Sheriff, 1 Ch. Ch. B. 208. 
 
 A purchaser of real estate, at a sale under a decree, will not be ordered to pay 
 the amount of hip purchase money into Court until the title has been accepted or 
 approved of. Crooks v. Street, 1 Ch. Ch. B. 96 ; but see Stewart v. Stewart, 1 Ch. 
 C»i. 243. 
 
 If the purchaser neglect to pay in his purchase money, and no objection is made 
 to the title, the Court will order him within a limited time to pay in th( amount 
 with interest, and in default direct a re-sale of the property, and that the purchaser 
 pay costs of the motion and deliciency, if any, on re-sale, Crooks v. Crooks, 4 Gr. 
 376 ; but if the purchaser become insolvent, and unable to complete the contract 
 he will be discharged from it,{re Heely, 1 Ch. Ch. B. 64 ; and see re Yaggie, Ibid, 62. 
 
 390. After a sale under an order is confirmed, the vendor 
 is, forthwith upon demand, to deliver an abstract of title to 
 the purchaser ; and if the purchaser does not sejve objections 
 within seven days, he is to be deemed to have accepted the 
 abstract as sufficient. If objections are served, the vendor is 
 to answer them within fourteen days ; and if the purchaser is 
 still dissatisfied, and if the parties cannot otherwise agree, 
 either party may obtain from the Master a warrant to con- 
 sider the abstract. 
 
 Where the title or the proof of it is involved in no difficulty, a condition of sale 
 that "The vendor is not to be bound to ^ive any evidence of title or any title-deeds 
 or copies thereof, other than such as are m his possession, or procure any abstract," 
 was held to be very objectionable, and should not be sanctioned by Masters, even 
 by consent, McDonald v. Gordon, 2 Ch. Ch. 126. See now the Act to amend the 
 law of Vendor and Purchaser, and to simplify Titles, B. S. O. , c. 109. A clause in 
 the conditions of sale that the vendors shall only proouce certain title deeds and an 
 abstract of the register, and that the purchaser shall not be entitled to call for 
 any other proof of title, does not exempt the vendors from shewing otherwise a 
 good title, The Canada Permanent Building Society v. Wallis, 8 Gr. 368. 
 
 A purchaser who enters into possession of the land purchased, even though he 
 does so by leave of the parties to the suit, is deemed to have accepted the title, 
 unless the sanction of the Court has been obtained to his entering into possession, 
 without waiving his right to call for a good title, Patterson v. "Robh, 6 It. B. 114 ; 
 but the obiection that oy going into possession the purchaser had accepted the 
 title was held to be waived by the vendor afterwards delivering an abstract and 
 answering requisitions, Aldwell v. Aldwell, 6 Pr. B. 183. Where, after a sale 
 under a decree, an abstract had not been demanded, and no steps had been taken 
 by the purchaser for twenty-three months after the confirmation of the report, a 
 reference as to title was refused, and thepurchaser held to have accepted the 
 title, Ontario Bank v. Sim, 6 Pr. B. 216. The party having the conduct of the 
 
¥\ 
 
 e the 
 
 any, 
 order, 
 
 and 
 
 istate, 
 
 •oceed 
 
 ty in 
 
 upon 
 
 (3rd 
 
 SALES. 
 
 [205] 
 
 [■ m 
 
 gale represents, for the purposes of the sale, so far as the purchaser is oonoemed 
 all the other parties to the suit, and it is his duty to remove, or procure to be re- 
 moved, any objection which may proporly be made to the title. Street v. Hallett, 6 
 Pr. R. 312. 
 
 On moving to make an order nifi for not delivering an abstract of title absolute, 
 it is necessary to shew that it has not been delivered to either party named in tiie 
 order, Dick v. McNab, 1 Ch. Ch. R. 81. 
 
 391. The Master is to determine all questions upon the 
 abstract and the sufficiency thereof; and, if desired by the 
 purchaser, may require the vendor to make the same as per- 
 fect as he can ; and if the vendor neglects or refuser to do so, 
 he may permit the purchaser to supply defects therein, at the 
 vendor's expense. 
 
 A purchaser, on receipt of the abstract, is bound within seven days to take all 
 the objections he intends to take to the sufficiency of the abstrail. These being 
 removed, it is not open to the purchaser to take any further objections to the 
 sufficiency of the abstract ; he can only require the vendors to verify the title 
 shewn on the abstract. Bank of Montreal v. Tox, 6 Pr. R. 217. If the purchaser 
 takes his objections to the title in the first instance, the Master will not go into the 
 question of the perfectness of the abstract, but will confine him to the objections 
 he has made to the title, no objections other than those specifically taken will be 
 ascertained, McManus v. Little, 3 Ch. Ch. R. 263. 
 
 393. The Master is not to make a report on the abstract, 
 but is to mark the objections as allowed or disallowed, as the 
 case may be ; and when he finds the abstract perfect, or as per- 
 fect as the vendor can make it, he is to certify to that effect 
 at the foot or on the back ; and such finding is to be final un- 
 less appealed from within fourteen days thereafter. 
 
 393. After an abstract is confirmed, or is accepted by the 
 purchaser as sufificient, no objection to the abstract is to be 
 allowed. 
 
 394. After acceptance or confirmation of the abstract, the 
 verification is to be proceeded with, and the vendor is with all 
 diligence to afford the purchaser all the means of verification 
 in his power, in the manner, and according to the practice 
 usual with conveyancers ; and after having done so, he may 
 serve a notice on the purchaser to make his objections or 
 requisitions, if any, within seven days, or that otherwise he 
 wUl be deemed to have accepted the title. 
 
 A vendor does not shew a good title by furnishing an abstract shewing on 
 the face of it a good title ; he must verify such abstract, Granger v. Latham, 14 
 Gr. 209. The vendor is bound, at his own expense, to furnish the purchaser with 
 copies of all instruments relating to the title which are not of record, re Charles, 
 4 Ch. Ch. R. 19 ; a purchaser is entitled to copies of title deeds registered by 
 memorials, but not of deeds registered under the Registry Act of 1867 R. S. O., 
 c. HI, lb. 
 
!r 
 
 [S06] 
 
 CHANOIRT ORDERS. 
 
 890. Upon being served with such notiee, the purchaser if 
 dissatisfied, is to serve his objections, or requisitions within the 
 time thereby limited ; and the like course is to be followed 
 upon such objectioDs or requisitions as is prescribed by Orders 
 390, 391, and 392, in relation to the abstract 
 
 396. In case of the refusal or neglect of the vendor to 
 Verify any portion of the abstract to the best of his ability, or 
 to furnish any necessair proof or documents in his power, the 
 Master may authorize the purchaser to do so at the vendor's 
 expense. 
 
 39'7. The foregoing Orders, 390, 391, 392, 393, 394, 396, 
 and 39ti, are to apply to all cases of reference to the Master as 
 to title, as well as to sales by the Court. 
 
 MORTOAOE suns. 
 
 426. Instead of foreclosure, the bill in any mortgage suit, 
 may pray a sale of the mortgaged premises, and that any 
 balance of the mortgage debt remaining due after such sale 
 may he paid by the mortgagor, and the same may be decreed 
 accordingly. (3rd June, 1853 ; Ord. 32, s. 3.) 
 
 A mortgagee is entitled to a decree for a sale or foredotnire, at his option as 
 against the mortgagor, Meyers v. Harrison, 1 Gr. 449. 
 
 The Court will not make a personal order against the mortgagor under this 
 section, unless asked by the prayer of the bill. 
 
 W..dre in a bill praying foreclosure only, a decree for sale was drawn up with a 
 direction that the mortgagor should pay any deficiency, the Court, at the instance 
 of the mortgagor, four years afterwards, amended the decree by striking out this 
 direction, but ordered the mortgagor to pay the costs of the proceedings which 
 had been taken under thedecrco, Coohenour v. Bullock, 12 6r. 138. 
 
 The owner of land, ittter creating a mortgage thereon, assigned his equity of 
 redemption to a third party, who covenanted to pay off the mortgage debt, and 
 afterwardsbecame the purchaser of the morteaged premises, under a decree at thesuit 
 of the mortgagee : the amount realized at the sale not being sufficient to cover the 
 amount due on the mortgage, the mortgagee was held not entitled to any lien on 
 the premises for the deficiency, Forbes v. Adamson, 1 Ch. Oh. B. 117. 
 
 Where the decree directs foreclosure, the Court may, on default in payment, 
 grant an order for sale without re-hearing the cause, Laslett v. Cliffe, 2 Sm. & G. 
 278: overruling, Girdlestone v. Lavender, 9 Ha. app. 63 ; see also, Wayn v. Lewis, 
 2!2 "L. J. Ch. 1061. But the Corrt will not after a decree for sale, order a fore- 
 closure without re-hearing the cause, and notice of the re-hearing must be served 
 on the defendant, even although the bill has been taken pro confeMto, McLellan v. 
 Jacobs, 9 Gr. 60. 
 
 487. Where any person is surety for the payment of a 
 mortgage debt, such person may be made a party to a suit for 
 the sale of the mortgaged property, and the relief specified in 
 the last Order may be prayed against both the mortgagor and 
 
 
/ 
 
 HORTQAOB SUITS. [207] 
 
 his surety, and the same may be decreed accordingly. (3rd 
 June, 1853; Ord. 32, s. 4.) 
 
 Where there ia only one prinoipal and one mue/ty both mtut be m»de putiee to 
 » bill for foreclosure or ule, Seidler v. SlAppard, 12 Or. 406 ; where a mortgage is 
 given by a lurety on his own property, toe prinoipal ia a neoeaaary party to a aoit 
 for a foreoloaure of the mortgage, R. 
 
 Aa to Joinder of oaoaea, aee Judioatnre Act, O. XIII. 
 
 428. The Court may direct a sale of the property, instead 
 of a foreclosure of the equity of redemption, on such terms as 
 the Court thinks fit ; and, if the Court thinks fit, without pre- 
 viously determining the priorities of incumbrancers, or giving 
 the usual or any time to redeem. (3rd June, 1853 ; Ord. 32, 
 s. 2.) ^ 
 
 A <Ul!e will not be ordered until the mortgagor haa had the uaual time to re- 
 deem, Trust and Loan Co. v. Bejmolda. 2 Gh. Ch. B. 41. Some special ground 
 must be shewn to induce the Court to denart from the ordinary rule of aUowing 
 six months for redemption, Bigney v. Fuller, 4 Gr. 198. An order for an imme- 
 diate aale will not be made in Chambera, where the Master, purauant to a decree 
 made in Court, haa fixed a day for pavment, and it haa not arrived, the motion 
 muat be made to the Court, Buell v. Fiaher, 6 Pr. B. 51. 
 
 429. If the request for a sale is made by a subsequent in- 
 cumbrancer, or by the mortgagor, or by any person claiming 
 under them respectively, the party making the request is to 
 deposit in Court a reasonable sum of money, to be fixed by the 
 Court, for the purpose of securing the performance of such 
 terms as the Court thinks fit to impose. (3rd June, 1853; 
 Ord. 32, sec. 2.) 
 
 The depoait haa, for ordinary cases, been fixed at $80. Where a aub8eq|uent in- 
 cumbrancer paid $80 into Court and obtained a sale which proved abortive, and 
 the costs were taxed at $165— Held that he could not be compelled to pay the dif- 
 ference between the deposit and the taxed costs ; and that the plaintiff should 
 have objected to the deposit aa being insufficient before the sale took place, London 
 and Canadian Loan and Agencv Co. v. Pulford, 7 Pr. B. 432. Where a subsequent 
 incumbrancer has obtained a sale under this Order an application to increase the 
 deposit must be made before the sale is acted upon, London and Canpxlian Loan 
 and Agency Company v. Morrison, 7 Pr. B. 450 ; and it was held that an order 
 could not be made against the mortgagor to increase the deposit, Cru3o v. Close, 
 8 P. B. out 
 
 After a decree of foreclosure, an application by the defendant for an order for 
 aale, the property mortgaged being worth $1,000, and the mortgage being for $157, 
 and that the usual deposit might be dispensed with, was refused, Thompson v. 
 Macaulay, 3 Ch. Ch. K. 111. The trustee of a mortgaged estate asking a sale in a 
 suit for foreclosure, is not released from the payment of the usual deposit, Machell 
 V. CampbeU, 6 U. C. L. J. 117. 
 
 430. If before, or upon the deposit to obtain a sale being 
 made, the plaintiff prefers that the sale be conducted by the 
 defendant desiring the sale, he may so elect ; and he is there- 
 upon to notify the defendant of such election. The notice may 
 be to the effect set forth in schedule B. 
 
 f ^ 
 
 
r-r^y j"~i 
 
 208] 
 
 CHANCERY ORDERS. 
 
 
 i 
 
 I 
 
 Wu 
 
 ^ ;: 
 
 1 ! 
 
 Schedule R. is m follows :— 
 
 Im Chanobrt. 
 
 (Short title.) 
 
 To , defendant. Take notice that the plaintiff elects that the sale of 
 
 the mortgaged premises be conducted by you instead of by the plaintiff, and you 
 are at liberty to withdraw the deposit made by you in this cause for the purpose of 
 such sale. 
 
 The defendant is not entitled to insist upon a sale instead of a foreclosure against 
 the consent of the mortgagee, without paying in the usual defiosit, upon his under* 
 taking the conduct of the sale, Taylor v. Walker, 8 Qrant, nOii. 
 
 431. Upon the plaintiffs filing with the Registrar a note 
 of such election, and proof of service q| such notice, the 
 defendant making the deposit is to be entitled to a return 
 thereof. (20th Dec. 1865 ; Ord. 10.) 
 
 432. Where the cause is heard upon an order to take the 
 bill ;pro confeaao, in a suit for foreclosure or sale, and no refer- 
 ence as to incumbrances is required, the plaintiff is to produce 
 at the hearing : — (1) The mortgage deed, and the assignments 
 thereof, if any ; (2) An affidavit which is to state the amount 
 adva-">ced upon the security ; the amount paid, whether by 
 receipt of rent or otherwise ; and the amount remaining due for 
 principal and interest, distinguishing how much for principal 
 and how much for interest. The affidavit is to state whether 
 the mortgaged premises, or any part of them, have been in the 
 occupation of the mortgagee or of any one under whom he 
 claims ; and, when there has been any such occupation, the affi- 
 davit is to state its nature, the time it continued, and the fair 
 rentable value of the property. (3rd June, 1853; Ord. 32, s.7.) 
 
 By O. IX., r. 11, of the Judicature Act, where the action is in respect of a 
 mortgage, and the plaintiff claims foreclosure or sale or redemption, or where the 
 action is for the administration of an estate, or for a partition^he plaintiff shall 
 be entitled to a judgment or order on pracipe to the Registrar, Deputy-Begiatrar, 
 Local Registrar, or Clerk or Deputy -Clerk of the Crown and Fleas, as the case 
 may be, on such evidence (if any) and in such cases (as nearlv as mav be), em 
 provided for by the present practice of the Court of Chancery in tnat behalf. 
 
 433. Upon production of such proofs and documents, the 
 Court may at once determine the amount due, and appoint the 
 time and place for the payment of the mortgage money, by the 
 decree, without a reference to the Master, or any further en- 
 quiry. (3rd June, 1853 ; Ord. 32, s. 7.) 
 
 434. In an ordinary suit cf foreclosure or sale against an 
 infant heir or devisee of the mortgagor, or of the assignee of 
 the mortgagor, where no defence is set up in the infant's an- 
 swer, the cause is not to be set down to be heard in Court by 
 way of motion for a decree ; but after the infant's answer is. 
 
m 
 
 I 
 
 MORTOAOE SUITS. 
 
 [200] 
 
 at the sale of 
 ntiff, and you 
 he purpoM of 
 
 loaure xcainat 
 >on his under* 
 
 rar a note 
 
 otice, the 
 
 a retuin 
 
 take the 
 
 1 no refer- 
 to produce 
 isignments 
 le amount 
 whether by 
 ing due for 
 ' principal 
 tie whether 
 3een in the 
 r whom he 
 n, the affi- 
 id the fair 
 d. 32, 8.7.) 
 
 1 respect of a 
 or where the 
 plaintiff shall 
 ity-Begi&trar, 
 18, as the case 
 « mav be), aa 
 behalf. 
 
 oients, the 
 ppoint the 
 ley, by the 
 urther en- 
 
 against an 
 
 fisignee of 
 
 ifant's an- 
 
 Court by 
 
 answer is 
 
 filed, or after the time for filing the same has expired, the 
 plaintiff is to file affidavits of the due execution of the mort- 
 gage, and of such other facts u . 1 circumstances as entitle him 
 to a decree, and is to apply for iiie decree in Chambers, upon 
 notice to the infant's solicitor. (1st April, 1867 ; Ord. 2.) 
 
 A motion may be made in Cha< ' jrs for a decrnn ander this Order, althou(;h un 
 adult is interested as well as an infant, and Uie Order applies to suits for re* 
 demption also, Order 645; and where th«f u lice is given in pursuance of Order 
 647, the decree me r embrace the additiiiial -dlief which can be (,iven in mortgage 
 eases under the A(fministration of .Tustice Act for the immediate delivery of pos- 
 session or immediate payment of the mortgage money. Order (>40. This Order is 
 idso extended to suits for redemption, Ordej 046. 
 
 Since the passing of this order any decree may be ibi r<>d on prtccipe wtiich the 
 Oourt could tormerly make on a hearing pro con/eato, Kirkiatiick v. Howell, 22 
 Or. 94. 
 
 In decrees of foreclosure agai'nst infant defendants, a day to aliew cause after 
 attaining twenty-one, must be reserved to the defendants, Mair v. Kerr, 2 Gr. 223 ; 
 and the final order of foreclosure must also reserve a day to shew cause. But 
 where a decree for foreclosure is made against the ancestor of the infants, it is not 
 necessary where the suit is revived against the infants, to insert in the final order 
 a day for the infants to shew cause, Sutherland v, Dickson, 2 Ch. Ch. R. 25. 
 
 Infants made parties by revivor, cannot set up a defence which their ancestor 
 had not set up, unless he had been prevented by fraud or mistake from pleading it, 
 Burke v. Pyne, 2 Ch. Ch. K. 193. 
 
 Where the heirs of the mortgagor are infants, and a bill is filed against them 
 for foreclosure, the rule of the Court is to grant a reference as of course, to in- 
 ouire whether a sale or foreclosure is more for the benefit of the infants, but if affi- 
 davits are filed to satisfy the Court as to the proper decioe, or if the guardian 
 consents, the reference may be dispensed with, Dudley v, Berczy, 13 Gr. l41 ; but 
 see Graham v. Davis, 2 Ch. Ch. R. 24. Where the decree directed an inquiry 
 whether a sale or foreclosure would be more beneficial for the infants, and the re- 
 IK>rt made under the decree did not find in favour of either sale or foreclosure, but 
 was silent on the subject, a final order for sale was refused, Edwards v Burling, 
 2 Ch. Ch. R. 48. 
 
 As to practice since the Judicature Act, see O. IX., r. li, quoted in notes f o 
 Order 432. 
 
 435. Where the defendant answers the bill, admitting the 
 execution of the mortgage and other facts, if any, entitling the 
 plaintiff to a decree, or where the defendant disclaims any 
 interest in the mortgaged premises, or where no answer is put 
 in to the bill, the plaintiff is, on praecipe to the Registrar, to 
 be entitled to sucn a decree as would under the practice of the 
 Court have been made upon the hearing of the cause pro 
 oonfesso. (20th Dec. 1865; Ord. 11.) 
 
 Where in a foreclosure suit, an injunction has been (.-ranted, the Registrar cannot 
 issue a decree on prse'^'pe continuing the injunction, but the cause must be brought 
 on for hearing, Kmg Freeman, 1 Ch. Ch. Rk 350. 
 
 Where proceedings are taken againat an absent defendant by advertisement a 
 decree cannot be granted on pracipe, M'Michael v. Thomas, 14 Gr. 249 ; nor where 
 defendant is not personally served, Glass v. Moore, 2 Ch. Ch. R. 327. 
 
 O. XI., r. 10, of the Judicature Act is as follows : — Where the action is for 
 the foreclosure or redemption of a mortgage, or sale of mortgaged premises, if the 
 plaintiff is not entitled to a judgment or order on wracipe, or would not according 
 to the practice of the Court of Chancery be entitled on prcecipe to such a judgment 
 
 O 
 
 U' 
 

 w 
 
 
 r ' 
 
 ll 
 
 1 1 
 
 1 
 
 
 
 •■ 'M 
 
 ■ 1 
 
 
 1 -•■ .» 
 
 - 
 
 
 
 (' f 
 
 
 
 
 y 
 
 u 
 
 [210] 
 
 CHANCEBT ORDERS. 
 
 or order as he desires, he shall be entitled to the proper judgment or order, on 
 notice or otherwise, according to the practice of the Court of Chancery where a 
 cause is heard on an order to take the hUlpro confeito or otherwise. 
 
 436. Where no answer is filed, the decree is to be drawn 
 up upon production of an office copy of the bill and an affidavit 
 of the service thereof, shewing the same to have been indorsed 
 with the notice set forth in schedule S. hereunder written. 
 
 The schedule S. is as follows : — 
 
 Your answer is to be filed at the office of the (Clerk of Records and Writs or 
 Deputy Registrar) at , in the of 
 
 You are to answer or demur within weeks from the service hereof. 
 
 If you fail to answer or demur within the time above limited, or if you answer 
 admitting the execution of the mortgage and other facts stated in the bill as en- 
 titling the plainti£F to a decree, you are to be subject to have a decree or order 
 made against you forthwith thereafter ; and if this notice is served upon you per- 
 sonally, you will not be entitled to any further notice of the future proceedings in 
 the cause. 
 
 NoTK.— This bill is filed by , of 
 
 solicitor for the above named plaintiff. 
 
 , in the county of 
 
 "And take notice, that the plaintiff claims that there is now due by you, for 
 principal money and interest, the sum of , and that you are liable to be 
 
 charged with this sum, with subsequent interest and costs, in and bv the decree to 
 be drawn up ; and that in default of payment thereof \^ithin six calendar months 
 from the time of drawing up the decree, your interest in the property may be 
 foreclosed ("/ sold) unless before the time allowed you as by this notice for answer- 
 ing, you file in the ofiice above named, a memorandum in wruing, signed by your- 
 self or your solicitor to the following effect : dispute the amount claimed bi/ 
 the plaintiff in this cause ; in which case you will be notified of the time fixed for 
 settling the amount due by you, at least four days before the time to be so fixed. 
 (In case foreclosure is prai/ed hy the plaintiff add :) If yoji desire a sale of the mort- 
 gaged premises instead of a foreclosure, you must, within the time allowed you to 
 answer, file in the office above named a note or memorandum in writing, signed by 
 yourself or your solicitor, to the following effect : — "I desire a sale of the mortgageil 
 premises in the plaintiff's bill mentioned, or a competent part thereof, instead of a 
 loreclosure ;" and deposit the sum of $80 to meet the expenses of such sale. 
 
 Where an order for immediate possession is prayed there must be added: — 
 " And the plaintiff will be entitled to an order for the immediate delivery of pos- 
 session of the mortgaged premises to him." 
 
 And where an order for immediate payment is prayed add :— 
 
 And the plaintiff will be entitled forthwith to execution against the goods ami 
 
 lands of you (naming the defendant against whom the plaintiff is entitled to the relief), 
 
 to recover payment of the amount due by you. 
 
 For forms under the Judicature Act, see Forms, No. 9. 
 
 On taking the account in a foreclosure suit no more can be found due than the 
 amount claimed by the indorsement on the bill, Boyd v. Wilson, 1 Oh. Ch. R. 258. 
 
 437. The notice under Order 436, is to specify whether the 
 plaintiff desires a foreclosure of the equity of redemption, or a 
 sale of the mortgaged premises. (20th Dec, 1 865 ; Ord. 9.) 
 
 Where the indorsement did not specify whether sale or foreclosure of the mort- 
 ed premises was sought, the service of the bill was set aside, Drewry v. O'Neil, 
 h. Ch. R. 204. 
 
 %^ 
 
 438. Where it appears conducive to the ends of justice that 
 parties interested in the equity of redemption should be allowed 
 
ment or order, on 
 Dhancery where a 
 e. 
 
 to be drawn 
 id an affidavit 
 been indorsed 
 sr written. 
 
 lords and Writs or 
 
 ice hereof. 
 
 , or if you answer 
 [ in the bill as en- 
 a decree or order 
 ved upon you per- 
 ire proceedings in 
 
 county of 
 
 V due by you, for 
 I are liable to be 
 id by the decree to 
 ; calendar months 
 property may be 
 notice for answer- 
 ig, signed by your- 
 imount claimed by 
 the time fixed for 
 ime to be so fixed. 
 ^ sale of the mort- 
 me allowed you to 
 writing, signed by 
 le of the mortgage.! 
 ereof , instead of a 
 such sale. 
 
 t be added:— 
 ate delivery of pos- 
 
 inst the goods ami 
 rititled to the relief), 
 
 ound due than the 
 , 1 Ch. Ch. R. 258. 
 
 y whether the 
 demption, or a 
 5; Ord. 9.) 
 
 ilosure of the mort- 
 , Drewry v, O'Neil, 
 
 of justice that 
 )uld be allowed 
 
 HORTQAQE SUITS. 
 
 [211] 
 
 to be made parties in the Master's office, by reason of the 
 parties so interested being numerous or otherwise, the Court 
 may direct that parties so interested be made parties in the 
 Master's office, upon such terms as te the Court seems fit ; such 
 order te be made only where one or more parties interested in 
 the equity of redemption are already before the Court. (29th 
 June, 1861.) 
 
 An order to make persons interested in the equitjr of redemption parties in the 
 Master's office will not be granted ex parte ; notice should be served on the owners 
 of the equity of redemption already before the Court, but not on those proposed to 
 be added, Penner v. Caniff, 1 Ch. Ch. B. 351 : but see, Ctunmins v. Harrison, 1 Ch. 
 Ch. B. 369. 
 
 Where after a final order of foreclosure had been obtained, it was sought to add, 
 as a party, a person who had purchased part of the mortgaged property, but who 
 had not been made a party to the suit, either by bill or in the Master's office, Van- 
 koughnet C, though granting a fiat on the petition, expressed a strong opinion that 
 no order could be made thereon, Orford v. Bailey, 1 Ch. Ch. B. 272 ; see also 
 Portman v. Paul. 10 Gr. 458. 
 
 Where under an order in Chambers after decree, parties are added as being in- 
 terested in the equity of redemption, an application to set aside the order must be 
 made to the Court and not in Chambers, Tice v. Meyers, 3 U. C. L. J. N. S. 102. 
 
 The application Iti. the first instance is in Chambers, Harrison v. Grier, 2 Ch. 
 Ch. B. 44& 
 
 439. Where the bill is filed by a subsequent incumbrancer 
 seeking relief against a prior mortgagee, such mortgagee must 
 be made a party previous to the hearing of the cause. 
 
 440. Where the plaintiff prays a sale or foreclosure, subject 
 to a prior mortgage, the prior mortgagee is not to be made a 
 party either originally or in the Master's office, except under 
 special circumstances to be alleged in the bill. (6th Feb. 1858.) 
 
 441. Decrees for foreclosure or sale, where a reference is 
 required, are, after the proper recitals hitherto in use, to direct, 
 in general ♦erms, that all necessary inquiries be made, accounts 
 taken, costs taxed, and proceedings had for redemption or 
 foreclosure (or for redemption or sale a8 the case may be), and 
 that for tl se purposes the cause is referred to (naming the 
 Master) ; ard a decree so expressed is to be read and con- 
 strued as if the same set forth the particulars contained in the 
 next thirteen Orders. 
 
 Where a plaintiff in a suit for foreclosure or sale asks a reference to the Master 
 to inquire as to incumbrancers, he t^es such a reference at the^peril of costs, if ther? 
 are in reality no incumbrancers, Hamilton v.. Howard, 4 Gr. Snl. 
 
 44!li. Upon such reference the Master is to inquire and 
 state, whether any person or persons, and who other than the 
 plaintifi^, has or have any lien, charge or incumbrance upon 
 
 I. ■ 
 
ifrrr 
 
 \ 
 
 
 lit- 'm 
 
 I a 
 
 ■ !ir 
 
 
 :;ili!i 
 
 ■:;i 
 
 
 ill . 
 
 I i 
 
 [212] 
 
 CHANCEBY ORDERS. 
 
 the lands and premises embraced in the mortgage security of 
 the plaintiff, in the bill mentioned subsequent thereto. 
 
 Where a judgment has been recovered pendente lite, it is not neoeBsary to make 
 the judiarment creditor a party, Wallbridge v. Martin, 2 Gh. Ch. B. 275. 
 
 443. The plaintiff is to bring into the Master's office certi- 
 ficates from the Registrar and Sheriff of the County wherein 
 the lands lie, setting forth all the incumbrances which affect 
 the property in the pleadings mentioned, and such other evi- 
 dence as he may be advised. 
 
 444. The Master is to direct all such persons as appear to 
 him to have any lien, charge, or incumbrance upon the estate 
 in question, to be made parties to the cause, and to be served 
 with a notice in the form set forth in schedule T hereunder 
 written. (6th Feb. 1880.) 
 
 The notice referred to is as follows : — 
 
 In Chanobbt. 
 
 Between A. B., Plaintiff, 
 and 
 C. D., Defendant. 
 
 Whereas a suit has been instituted by the above named plaintiff for the fore* 
 closure (or sale) of certain lands, being (insert description of lands) and I have been 
 directed bv the decree made in this cause, and dated the day of , to 
 
 inquire whether any person, other than the plaintiff, has any charge, lien, or in- 
 cimibrance upon the said estiskte. And whereas it has been mado to appear before 
 me that vou nave each some lien, charge or incumbrance upon the said estate, and 
 I have therefore caused you each to be made a party to this suit, and appointed 
 the day of , at o'clock in the noon, for you to appear 
 
 before me, at my Chambers at , either in person, or by your solicitor, to 
 
 prove your claims. 
 
 Now yon are hereby required to take notice : 1st. That if you wish to apply 
 to discharge my order making you a party, or to add to, varv, or set aside the 
 decree you must do so within fourteen days from the service hereof ; and if yon 
 fail to do so, you will be bound by the decree, and the further proceedings in this 
 cause as if you were originally made a party to the suit. 2nd. That if you fail to 
 attend at the time and place appointed, vou will be treated as disclaiming aU in- 
 terest in the land in (question, and it will be dealt with as if you had no claim 
 thereon, and your claim will be 
 
 be in fact foreclosed. 
 
 To 
 
 W. L., Matter. 
 
 Persons so added are parties from the date of the Master's order, making them 
 so, Sterling v. Campbell, 1 Ch. Ch. B. 147. 
 
 When a mortgagee takes proceedings to foreclose against the mortgagor and the 
 estate of a deceased mesne incumbrancer, the real representatives of such deceased 
 incumbrancer are not necessary parties, Taylor v. Stead, 1 Gh. Ch. B. 74 ; Grim- 
 shawe v. Parks, 6 U. 0. L. J. 142. 
 
 445. Anyparty served with a notice under Order 444 may 
 apply to the Court at any time within fourteen days from the 
 date of the service, to discharge the order making him a party, 
 or to add to, vary, or set aside the decree. 
 
MOBTGAGE SUITS. ^ 
 
 [2131 
 
 security of 
 reto. 
 
 loesBary to make 
 .275. 
 
 office certi- 
 ity wherein 
 which affect 
 1 other evi- 
 
 a.s appear to 
 n the estate 
 to be served 
 r hereunder 
 
 itiff for the fore- 
 I and I have been 
 lay of , to 
 
 liarge, lien, or in- 
 to appear before 
 le aaid estate, and 
 it, and appointed 
 for you to appear 
 your solicitor, to 
 
 ou wish to apply 
 , or set aside the 
 sreof ; and if yon 
 roceeoings in this 
 fhat it you fail to 
 lisclainung all in- 
 ou had no claim 
 
 '. L., MaOer. 
 
 der, making them 
 
 nortgagor and the 
 B of such deceased 
 Gh. B. 74 ; Grim- 
 
 »rder 444 may 
 lays from the 
 I him a party, 
 
 The time of vacation !■ not to be reckoned in tLa computation of the fourteen 
 dayi^ Order 408. 
 
 An application to enlarge the time should be made in Chambers on notice, per 
 Proudfoo^ V. C, in Crone v. Crone, 28 Nov., 1877. 
 
 446. The Master, before be proceeds to hear and determine 
 is to require an appointment to the effect set forth in schedule 
 T to be served upon the incumbrancers made parties before the 
 hearing, whether the bill has been taken pro confesao against 
 such persons or not. (6th Feb. 1858.) 
 
 The form of appointment is :— 
 
 In Ghanobbt. 
 
 Between A. B., Plaintiff, 
 and 
 C. D., Defendant. 
 
 Having been directed by the decree in this cause, dated the day of 
 
 to inquire whether any person other than the plaintiff has any lien, charge or 
 incumbrance upon the lands in the pleadings mentioned, being (insert description 
 of la;id), I do hereby appoint the day of next, at o'clock in the 
 
 noon, at my Chambers at , to proceed with the said inquiries. 
 
 And you are hereby required to take notice : 
 
 That if you fail to attend at the time and place appointed, you will be treated 
 as disclaiming all interest in the land in question, and it will be aeiJt with as if you 
 had no claim thereon, and your claim will be in fact foreclosed. 
 
 W. L., Master. 
 
 447. When any person, who has been duly served with a 
 notice under Order 444, or with an appointment under Order 
 446, neglects to attend at the time appointed, the Master is to 
 treat such non-attendance as a disclaimer by the party so mak- 
 ing default ; and the claim of f'uch party is to be thereby fore- 
 closed, unless th° Court order otherwise, upon application duly 
 made for that purpose. (6th Feb. 1858.) 
 
 When a person made a party in the Master's office appears and disclaims, he is 
 not entitled to any costs, as by remaining inactive the same end will be attained as 
 by disclaiming, Hatt v. Park, 6 Gr. 553. 
 
 448. When all parties have been duly served, the Master 
 is to take an account of what is due to the plaintiff, and to such 
 other incumbrancer or incumbrancers (if any), for principal 
 money and interest; and to tax to them their costs and settle 
 their priorities ; arid also to appoint a time and place, or times 
 and places, for payment according to the practice of the Court. 
 
 Where theuBualaffidavit proving amortgage debtismade, the ontuof reducing the 
 amount lies on the opposite party, Warren v. Taylor, Ross v. Taylor, 9 Gr. 59 ; 
 Elliott V. Hunter, 24 Gr. 480 ; and see Court v. Holland, 8 Pr. B. 213, where the 
 d! ' Inotion between the mode of proving in the Master's office a bond or mortgage 
 debt and a simple contract debt is considered. 
 
 Where the Master's report directing the payment of mortgage money on a day 
 being six months from the date thereof, was not dated, and the decree gave six 
 oJendar months, a new day for payment had to be taken, Scott v. MoKeown, 1 Gh. 
 Oh. B. 186. 
 
-li 
 
 ht/i 
 
 !-r 
 
 II 
 
 
 1^ 
 
 !n ■ 
 
 It 
 
 
 Jiiii 
 
 P-^'A 
 
 
 [214] 
 
 CHANCERT OBDEBS. 
 
 A final order cannot be granted where the Master's report is not confirmed be- 
 fore the day appointed for payment. Mountain v. Porter, 1 Ch. Gh. B. 207 ; Mills 
 V. Dixon. 2 Ch. Gh. B. 63. 
 
 Where before the day for payment arrives, the agency at the Bank at which the 
 money is payable is closed, a new day for payment must be appointed, and the 
 order served, King v. Connor, 1 Ch. Ch. B. 274. Where the plaintiff desires to 
 dispense with service of an order appointing a new day, on the groimd of the de- 
 fendant beinp: out of the jurisdiction, the plaintiff's affidavit is not sufficient evi- 
 dence to justify dispensing with service, Aaama v. Earner, 1 Ch, Gh. B. 260. 
 
 Where there are several incumbrancers and one day is given to them to redeem, 
 or in default foreclosure, and the incumbrancer first in priority redeems, a new ac- 
 count must be taken and a new day for payment appomted, giving the others an 
 opportunity to redeem, Ardagh v. Wilson, 1 Ch. Ch. B. 389. 
 
 Even after the final order of foreclosure has been obtained the defendant may 
 apply for an extension of the time for the payment of the mortgage money. The 
 order is not obtained as of course, and the application will be refused when the 
 excuse for default is not satisfactory and the security is not ample^ Eyre v. Hanson, 
 2 Beav. 478 ; Nanny v. Edwards, 4 Buss. 124 ; and the Court will not interfere to 
 open foreclosure in aid of a defendant who has been guilty of laches and shewn no 
 effort to save his estate, Brothers v. Lloyd, 2 Ch. Ch. B. 119 ; an affidavit bv the 
 solicitor that the defendant was exerting himself to raise the money was held in- 
 sufficient. Anon., 4 6r. 61. 
 
 The enrolment of the final order is no objection to the application if made 
 promptlv, and the Court has the means of giving the mortgagee immediate pay- 
 ment, Tnomhill v. Manning, 1 Sim. N. S. 461. An enlargement of the time may 
 be given oftener than once. 
 
 On appl3nng, the defendant should shew a reasonable excuse for non-paymen^ 
 on the day appointed, a probability of redeeming at the expiry of tlie extended 
 time, and that the pro^rty is ample security, Johnson v. Ashbridge, 2 Ch. Ch. B. 
 261 ; and when the plamtiff can be placed in the same position he occupied before 
 the default, and recompensed for any damage he may have suffered, and when there 
 appears a prospect of the amount of the mortgage money being paid within the 
 period asked for, the Court will not refuse to open the foreglosure, Waddell v. 
 MoColl, 2 Ch. Ch. B. 62 ; and see G. v. V. 2 Ch. Ch. B. 33 ; at one period the terms 
 on which an application was granted appear to have been to require payment of the 
 interest and costs by an early day, and to extend for six months the period for 
 pajrment of the principal money^ Whatton v. Cradock, 1 Keen, 269 ; Brewen v. 
 Austin, 2 Keen, 211 ; Geldard v. Hornby, 1 Ha. 261 ; and this rule seems still fol- 
 lowed where the security is not ample, Fisher on Mortgages (3rd ed.) 1063. 
 
 The course more generall;^ followed now is to extend the time upon pajrment 
 of the costs of the ap^cation, charging defendant with interest on the gross 
 amount reported due, Halford v. Yate, 1 K. & J. 677 ; Whitfield v. Boberts, 7 
 Jur. N. S. 1268 ; and see Howard v. Macara, 1 Ch. Ch. B. 27. 
 
 Where it was shewn that the defendant was hindered in selling or raising money 
 on the lands in consequence of an advertisement signed and circulated by the 
 plaintiff's solicitor, the time for payment was extended without costs, Gilmour v. 
 Meyers, 2 Gh. Gh. B. 179. 
 
 449. The Master's report must state the names of all per- 
 sons who have been made parties ; n his office, and who have 
 been served with the notice or appointment hereinbefore pro- 
 vided, the names of such as have made default, and must 
 settle the priorities, etc., of such as have attended, and these 
 latter are to be certified as the only incumbrancers upon the 
 estate. (6th Feb. 1858 ; Ord. 6.) 
 
 450. In case of payment by any party according to the 
 report, the party to whom payment is made is to convey the 
 
MOBTQAGE SUITS. 
 
 [215] 
 
 >t oonJSrmed be- 
 ll. 207 ; Mills 
 
 ok at which the 
 inted, and the 
 intiff desires to 
 ound of the de- 
 i sufficient evi- 
 B. 260. 
 
 hem to redeem, 
 sems, a new ao- 
 the others an 
 
 defendant may 
 _ money. The 
 iised when the 
 "lyre V. Hanson, 
 not interfere to 
 
 and shewn no 
 affidavit by the 
 ey was held in- 
 
 ication if made 
 immediate pay- 
 )f thft time may 
 
 or non-pa3rmen^ 
 of the extended 
 e, 2 Ch. Oh. R. 
 occupied before 
 and when there 
 paid within the 
 ure, Waddell v. 
 period the terms 
 payment of the 
 I the period for 
 269 ; Brewen v. 
 i seems still fol- 
 ,) 1053. 
 
 upon payment 
 t on the gross 
 Id V. Roberts, 7 
 
 r raising money 
 culated by the 
 >st8, Gilmour v. 
 
 3 of all per- 
 i who have 
 ibefore pro- 
 and must 
 , and these 
 s upon the 
 
 ling to the 
 convey the 
 
 premises, free and clear of all incumbrances, done by him, and 
 deliver up all deeds and writings in his custody or power, re- 
 lating thereto, upon oath, to the party making the payment, 
 or to whom he may appoint. 
 
 451. In default of payment being made according to the 
 report, the plaintiff is to be entitled, on an ex parte applica- 
 tion, to a final order of foreclosure against the party making 
 default. 
 
 Where co-mortgagees are made co-plaintiffs in a foreclosure suit, the affidavit 
 as to non-payment, on which to obtain the final order of foreclosure, should be made 
 by all of tnem, Annis v. Wilson, 1 Ch. Ch. R. 217 ; one of the mortgagees being 
 abroad, the affidavit of non-payment made by the other was held sufficient, Layard 
 V. Maud, W. N. (1869)258 ; Counter v. Wylde, 1 Gr. 638 ; and the affidavit by the 
 plaintiff should shew that he has not been in possession of the mortgaged property, 
 nor in receipt of the rents and profits, Scott v. McDonnell, 1 Ch. Ch. R. 193 ., the 
 affidavit should be made after the day the money is due, Blong v. Kennedy, 2 Ch. 
 Ch. B. 453. 
 
 On an application for a final order of foreclosure, where the affidavit of non-pay- 
 ment is made by the plaintiff's agent, it should state that he is authorized to receive 
 the money. Powers v. Merriman, 1 Ch. Ch. B. 225 : but tha authority of the ageut 
 need not be produced, it is sufficient for him to swear thatne is the duly authorized 
 agent, Radclytfe v. Duffy, 1 Ch. Ch. R. 302 ; the affidavit must shew where the 
 custody of the mortgage has been, Rae v. Shaw, 1 Ch. Ch. R. 209. Where the 
 affidavit as to non-payment is made by the plaintiff's solicitor, it must be shewn 
 that the plaintiff has no other agent within the jurisdiction authorized to receive 
 the money, Taylor v. Cuthbert, 1 Ch. Ch. R. 240. On an application by a com- 
 pany for a final order, the affidavit of the officer of the company as to non-payment, 
 should shew that he is the proper officer to receive the money, Western Assurance 
 Co. V. Capreol, 1 Ch. Ch. R. 227. 
 
 The certificate under Order 257 from the Bank officer should shew that the 
 money ^ .s not been paid before, as well as on or since the day appointed, Farrell 
 V. Stokes, 1 Ch. Ch. R. 201 ; the certificate should be by the cashier, or other like 
 officer ; that of the accountant as such, is not sufficient, Campbell v. Garrett, 1 Ch. 
 Ch. R. 255. 
 
 Where the mortgagee is in occupation of the mortgaged premises, the Master 
 should charge him with occupation rent up to the day appointed for payment, and 
 where it appeared that a mortgagee had been charged with occupation rent to the 
 date of the Master's report only, a final order was refused. Pipe v. Shafer, 1 Ch. 
 Ch. R. 251 ; and where the plaintiff's affidavit shewed that he had been in occupa- 
 tion of the property, it was ref 3rred back to the Master to take a new account, set 
 an occupation rent and appoint a new day for payment, although the plaintiff 
 swore that he was in occupation merely as caretaker, and had not received any 
 rents or profits, Cummer v. Tomlinson, 1 Ch. Ch. R. 235. After the day appointed 
 for the payment of the amount due in a foreclosure suit, the t>laintiff having 
 entered into possession of the mortgaged property, he was held entitled to a final 
 order of foreclosure without a new account being taken, Greenshield v. Blackwood, 
 1 Ch. Ch. R. 60 ; Constable v. Howick, 5 Jur. N. S. 331. 
 
 Where an order for sale was taken out ex parte by mistake instead of an order 
 for foreclosure, the Court on an ex parte application will vacate the order for sale 
 Mid grant an order for foreclosure, McGillivray v. Cameron, 1 Ch. Ch. R. 197. 
 
 Where two years had elapsed from the day appointed for payment, an ex parte 
 application for a final order of foreclosure was refused, Kirchoffer v. Stafford, 2 
 Ch. Ch. R. 52 ; Ardagh v. Orchard, 2 U. C. L. J. N. S. 303. 
 
 452. All subsequent accounts are, from time to time, to be 
 taken, subsequent costs taxed, and necessary proceedings had, 
 for redemption by, or foreclosure of, the other party or parties 
 
m 
 
 f< , 
 
 hyi 
 
 >l! 
 
 IM 
 
 m 
 
 M 
 
 m 
 
 M 
 
 
 i; 
 
 [216] 
 
 CHANCERY ORDERS. 
 
 entitled to redeem the mortgaged premises, as if specific 
 directions for all these purposes had been contained in the 
 decree. 
 
 453. If the decree directs a sale instead of a foreclosure 
 on default in payment, then on default being made, and^ an 
 order for sale obtained, the premises are to be sold, with the 
 approbation of the Master, and he is to settle the conveyance 
 to the purchaser in case the parties difier about the same ; and 
 the purchaser is to pay his purchase mor .y into Court, to the 
 credit of the cause, subject to the further order of the Court. 
 
 Where a sale is ordered the Master may cause the property, or a competent part 
 thereof, to be sold either by public auction, private contract, or tender, or pai-t by 
 one mode and part by another, as he may think best for the interest ot all parties, 
 and he may fix an upset price or reserved bidding, but such price or bidding must 
 be so fixed at the meeting held by him for the purpose of settling the advertisement 
 and making the other arrangements preparatory to the sale, and must be notified 
 in the conditions of sale, Jud. Act, O. XXXVII,, r. 7. For proceedings and 
 practice under an order for sale, see Order 374, et seq. As to setthng conveyances, 
 see notes to Order 226. 
 
 Where a decree directed a sale, but omitted to provide that in the event of the 
 sale failing the defendant should stand foreclosed, the Court, upon petition setting 
 forth the facts, and that the attempted sale had proved abortive, ordered defend- 
 ant to pay the amount which had been found due within one month, or, in default, 
 foreclosure, Goodall v. Burrows, 7 Gr. 449. Where a foreclosure is asked after an 
 abortive sale, the mortgagor must first be allowed three months to redeem, 
 Girdlestone v. Gunn, 1 Ch. Ch. R. 212. It is unnecessary to present a petition for 
 foreclosure after an abortive sale ; it is sufficient to serve a notice of motion on the 
 mortgagor ; and the extra costs of a petition and service thereof on parties other 
 than the mortgagor will be disallowed, Odell v. Doty,, 1 ("'h. •^'f. •'>C-7. 
 
 454. The purchase money, when so w.i l '. is to be applied 
 in payment of what has been found due to yk >]aintifFand the 
 other incumbrancer or incumbrancers (if aiiy), according to 
 their priorities, together with subsequent interest, and subse- 
 quent costs, when computed and taxed by the Master. 
 
 455. In the event of the purchase money being insufficient 
 to pay what has been found due to the plaintiff for principal, 
 interest and costs, subsequent interest and subsequent costs, 
 the plaintiff is to be entitled, (where the mortgagor is a de- 
 fendant and such relief is prayed by the bill,) to an order ex 
 •parte for the payment of the deficiency. 
 
 As to the order for the payment of any deficiency, see Cochenour v. Bullock, 
 12 Grant, 138 ; Forbes v. Adamson, 1 Ch. Ch. R. 117. 
 
 A vendor who has conveyed land without receiving the purchase money is en- 
 titled against the vendee to a decree for the sale of the property, and to a personal 
 order for payment of any deficiency, Sanderson v. Burdett, 16 Gr. 119 ; S. C. on 
 •ppeal, 18 Gr. 417, Skelly v. SkeUy, 18. Gr. 495. 
 
 456. An incumbrancer made a party in the Master's office, 
 and entitled to, and desiring a sale of tne mortgaged premises, 
 
if specific 
 led m the 
 
 foreclosure 
 de, and, an 
 d, with the 
 jonveyance 
 same; and 
 )urt, to the 
 ■ the Court. 
 
 competent part 
 er, or part by 
 oi all parties, 
 ' bidding must 
 ! advertisement 
 ust be notified 
 'oceedings and 
 8 conveyances, 
 
 e event of the 
 )etition setting 
 rdered defend- 
 , or, in default, 
 asked after an 
 ihs to redeem, 
 it a petition for 
 ' motion on the 
 n parties other 
 
 be applied 
 itiff and the 
 ccording to 
 and subse- 
 ber. 
 
 insufficient 
 r principal, 
 juent costs, 
 or is a de- 
 m. order ex 
 
 ur V. BuUook, 
 
 9 money is en- 
 id to a personal 
 119 ; S. C. on 
 
 ster's office, 
 d premises, 
 
 MORTQAQE SUITS. 
 
 [217] 
 
 is to make the necessary deposit therefor before the Master's 
 report is settled, whereupon the Registrar is to issue an order 
 on praecipe, directing a sale of the mortgaged premises instead 
 of a foreclosure, and thereupon the Master is to compute sub- 
 sequent interest, and appoint a time and place, or times and 
 places, for payment ; and all the subsequent proceedings are to 
 be taken and had as if the decree had been in the first instance 
 a decree for sale. 
 
 As to the deposit on desiring a sale, see Ord. 429, and notes. 
 
 457. Whei the state of the account ascertained by an 
 order, or by the report of the Master, is changed by payment of 
 money, by receipt of rents and profits, by occupation, rent or 
 otherwise, before the final order for foreclosure or sale is obtained, 
 the plaintiff, or other party to whom the mortgage money is 
 payable, may give notice to the party by whom the same is 
 payable, that he gives him credit for a sum certain, to be named 
 in the notice, and that he claims that there remains due in 
 respect of such mortgage money a sum certain, to be also 
 named in the notice. (29th June, 1861.) 
 
 The notice of credit must be given before the day for payment arrives, Knottinger 
 V. Barber, 1 Ch. Oh. R. 268. 
 
 Where after the dajr appointed for payment the plaintifif entered into possession 
 of the mortgaged premises he was held entitled to a final order of foreclosure with- 
 out a new account being taken, Greenshields v. Blackwood, 1 Ch. Ch. B. 60 ; Port- 
 man r. Smith, 2 L. J. N. S. 167. 
 
 458. Upon the final order for foreclosure or sale being ap- 
 plied for, it the Judge thinks the sums named in such notice 
 proper to be allowed and paid under the circumstances, the 
 order for final foreclosure is to go without further notice, unless 
 the Judge directs notice to be given. (29th June, 1861.) 
 
 459. The party to whom the mortgage money is payable, may 
 apply in Chambers for a reference to a Master, or for an ap- 
 pointment, to fix such sums respectively; and in the latter 
 case either upon notice, or ex parte, as the Judge thinks fit ; 
 and the order to be made thereupon is to be served, or service 
 thereof dispensed with, as the Judge directs. (29th June, 
 1861.) 
 
 460. The party to whom such notice is given may apply 
 in Chambers for an appointment to ascertain and fix the 
 amounts proper to be allowed and paid, instead of the amounts 
 mentioned in such notice ; or for a reference to a Master for the 
 like purpose ; and in case the Judge thinks a reference to a 
 
 ^■'^^%J: 
 
wm 
 
 [218] 
 
 CHANCERY OBDERS. 
 
 ;i: 
 
 i 
 
 i 
 
 j 
 
 
 ■ 
 
 
 
 
 It 
 
 !■ .[ 
 
 '? 
 
 
 
 
 1 
 
 ' 1 
 
 Master proper, the same may be made ex 'pa/rte unless the * 
 Judge otherwise directs. (29th June, 1861.) 
 
 461. Where a suit has been instituted for the foreclosure 
 of the equity of redemption in any mortgaged property, for 
 default in the payment of interest, or of an instalment of the 
 principal, a defendant may move to dismiss the bill upon 
 paying into Court the amount then due for principal, interest, 
 and costs. (3rd June, 1853; Ord. 32, s. 5.) 
 
 Upon default in payment of any instalment of principal or interest, the 
 mortgagee has a right to call in the whole amount secured by the mortgage, Sparks 
 V. Redhead, 3 Gr. 311 ; Cameron v. McRae, lb. ; but a mortgagee who holds 
 several mortgages in fee on the same land, one of which is not due, cannot file a 
 bill to foreclose that mortgage with the others, Thibodo v. Collar, 1. Gr. 147. 
 
 When a defendant moves to stay proceedings under this section, the interest is 
 to bA calculated up to the last gale day, and not up to the time of making the 
 application, Strachan v. Mumey, 6 Gr. 378. 
 
 A mortgagee is not obliged to accept payment of the whole principal and 
 interest on a mortgage on which only a certain amount is over due, on a bill filed 
 for foreclosure, Green v. Adams, 2 Gh. Ch. R. 134. 
 
 Although in terms this Order only refers to a suit for foreclosure instituted 
 a^inst a mortgagor or owner of the equity of redemption, the same relief will be 
 given in a suit for redemption instituted by the mortgagor or those claiming under 
 him, Moore v. Merritt, 6 Gr. 550 ; McLaron v. Miller, 20 Gr. 637 ; Dornyn v. 
 Fralick, 21 Gr. 193 ; but see Tyler v. Hinton, 3 App. R. 53. 
 
 46!S. Where a suit has been instituted for the purpose and 
 under the circumstances specified in the last Order, a defen- 
 dant may move to stay the proceedings in the suit, after 
 decree, but before sale or final foreclosure, upon paying into 
 Court the amount then due for principal, interest, and costs. 
 (3rd June, 1852 ; Ord. 32, s. 6.) 
 
 463. Where an application is made to stay the proceedings 
 under Order 462, the decree may afterwards be enforced, by 
 order of the Court, upon subsequent default in the payment 
 of a further instalment of the principal, or of the interest. 
 (3rd June, 1852 ; Ord. 32, s. 6.) 
 
 After pavment under Order 462 of what is due, it is irregular to take any fur- 
 ther proceedings in the cause until another instalment falls due, Carrol v. Hopkins, 
 4 Grant, 431 ; as to the period up to which interest is to be computed, see note to 
 Order 461. 
 
 Where a stay of proceedings has been ordered and default is made in payment 
 of another instalment of interest, an order will be granted directing payment of the 
 whole sum secured, with liberty to the defendant to pay the sum now actually pay- 
 able, and directing a stay of proceedings on such payment being made, Stracnau v. 
 Devlin. 1 Ch. Ch. R. 8. 
 
 464. In a suit for foreclosure or for redemption, the mort- 
 gagor or other person entitled to the equity of redemption, 
 being in possession of the premises foreclosed, may be ordered 
 
'^ 
 
 MOBTQAQE SUITS. 
 
 [219] 
 
 mless tbe * 
 
 breclosure 
 perty, for 
 mt of the 
 bill upon 
 interest. 
 
 interest, the 
 ;gage, Sparks 
 e who holds 
 cannot file a 
 Sr. 147. 
 
 le interest is 
 making the 
 
 >rincipal and 
 )n a bill filed 
 
 re instituted 
 'elief will be 
 iiming under 
 ; Domyn v. 
 
 irpose and 
 r, a defen- 
 mit, after 
 ying into 
 and costs. 
 
 •oceedings 
 
 forced, by 
 
 payment 
 
 ) interest. 
 
 ;ake any f ur- 
 l V. Hopkins, 
 1, see note to 
 
 I in payment 
 y^ment of the 
 Kitually pay* 
 , Straohau v. 
 
 \ihe mort- 
 iemption, 
 e ordered 
 
 to deliver up possession of the same upon or after final order 
 of foreclosure, or for the dnynissal of the bill, as the case may. 
 be. (29th June, 1861.) 
 
 This section refers only to mortgage cases, and does not apply where the bill in 
 a snit for specific performance is diiomssed at the hearing, Mavety v. Montgomery, 
 ICh. Ch. R. 21. "6. J 
 
 The Court will not make such an order against the tenants of the mortgagor or 
 owner of the equity of redemption, although such tenancy may have begun after 
 the mortgage was made, Bank of Montreal v. Ketchum, 1 Ch. Ch. B. 117 ; an order 
 for delivery of possession is only made against persons not parties, when they ac- 
 quired possession pendente lite from a party to the suit, and have no pretence of 
 having a paramount title, though the rule may be somewhat broader in the case of 
 receivers and sequestrators, Bank of Upper Canada v. Wallace, 13 Gr. ]^Si. 
 
 An order for delivery of possession will not be granted ex parte, but notice of 
 motion must be served ; even though the bill has been taken pro confeato ; Hodkin- 
 son V. French, 1 Ch. Ch. E, 201. 
 
 After the final order for foreclosure an order for delivery of possession will be 
 granted, although not asked for when the final order was obtained. Lazier v. Ban- 
 ney, 6 Gr. 323 ; and see Mason v. Seney, 2 Ch. Ch. B. 30. 
 
 On moving to commit for contempt in not obeying such an order, it must be 
 shewn that possession was demanded, Nevieux v. Labadie, 1 Ch. Ch. B. 13. 
 
 Where more than three years have elapsed between the final order, and the ap- 
 plication for delivery of possession, an affidavit is required to shew the circum- 
 stances of the possession and the final order, and that the defendant has never 
 relinquished possession, Irving v. Munn, 1 Ch. Ch. B. 240. 
 
 The fact that an ejectment suit has been brought bjr the mortgagee, and is 
 pending, is no bar to obtaining the usual order for possession, after final order for 
 foreclosure, but in such a case the order will be granted only on the terms of dis- 
 continuing the action at law, and paying the costs of it, Mofifatt v. White, 1 Ch. 
 Ch. B. 227. 
 
 Since the Adminstration of Justice Act, B. S. O., c. 49, the plaintiff may by 
 his bill pray for immediate ^ssession of the mortgaged premises. As to the in- 
 dorsement where such relief is prayed, see Ord. 647. 
 
 465. Where a mortgagee has proceeded at law upon his 
 security, he shall not be entitled to his costs both at law and 
 in equity, unless the Court sees fit to order otherwise. (6th. 
 Feb. 1858] Ord. 7.) 
 
 Where a mortgagee proceeds both at law and in equity, he cannot, in the absence 
 of special circumstances to justify the proceedings, elect to take the Chancery costs 
 instead of those at law, if the defendant objects thereto. Weir v. Taylor, 1 Ch. Ch. 
 B. 371 ; and see Budd v. Bowe, 22 L. T. N. S. 785. 
 
 466. In a redemption suit, if the plaintiff does not redeem 
 the defendants, or such of them as he is ordered to redeem, 
 the bill need not be dismissed ; but where there are other de- 
 fendants, in lieu of the bill being dismissed the plaintiff may 
 be declared foreclosed, and directions may be given, either by 
 the decree or by subseq\ient orders, as to the relative rights 
 and liabilities of the defendants as amongst themselves ; and 
 such proceedings are in such case to be thereupon had, and 
 with the same effect, as in a foreclosure suit. (6th Feb. 1865 ; 
 Ord. 24.) 
 
 Se^ as to prooeedings in snob a suit, Jud. Act, O. XXXVII. , rr. 9, 10. 
 
[220] 
 
 CHANCERY ORDERS. 
 
 PROOBSniNGS IN A MOBTOAOI SOIT. 
 
 PARTIES. 
 
 As a greneral rule all praons who have an interest either in the right of 
 redemption or in the security, are necessary parties to foreclosure and redemption 
 actions, Jones on Mortgages, II. 413 ; Fish r on Mortgages, s. 1427. 
 
 In Forboloburk Suits. 
 
 1.— Parties pkiintiff. 
 
 If the mortgagee is only party in interest, he is, of course, the only plaintiff ; 
 but if he has assigned his whole interest in the mortgage, he should not be made a 
 party to the suit, Fisher, s. 1457. Upon the death bi the mortgagee the mortgage 
 security belongs in equity to his personal representatives, who are proper parties to 
 bring a suit for foreclosure— not the heirs or parties beneficially entitled under his 
 will, Fisher, s. 1466 ; Lawrence Humphreys, 11 Gr. 209 ; Grimshaw v. Parks, 
 6 L. J. 0. S. 142. 
 
 2.— Parties defendatU. 
 
 Mortgagor. — The mortgagor or the owner for the time being of the whole or any 
 share of the equity of redemption must be present in every suit, otherwise his right 
 to redemption would remam open. He need not, however, be joined in a suit 
 between mortgagee and derivative sub-mortgagee for redemption or foreclosure, 
 Fisher, 8. 1428. 
 
 The mortgagor, after he has conveyed the whole of the premises mortgaged, is 
 not a necessary party to the suit, unless a judgment is sought against him on the 
 covenant or an order for payment of any deficiency upon a sale, Jones on Mort- 
 gages, II. 404. The holder of the equity of redemption bv purchase from mort- 
 gagor is of course a necessary part^. The assignee in insolvency of a mortgagor 
 is the proper party to suits respecting his interest in the mortgaged premises, and 
 the mortgagor is not a necessary party, Fisher, 1433 ; Torrance v. Winterbottom, 
 2 Gr. 487. 
 
 A puisne mortgagee may file a bill to foreclose subsequent incumbrancers to 
 himself and the mortgagor without making the prior mortgagees parties (their 
 rights will not be affected by the suit), but he cannot file a bill to redeem those 
 prior to himself without making all subsequent parties, Seton on Decrees, 1086. 
 Where the bill is filed by a subsequent incumbrancer seeking relief against a prior 
 mortgagee, such mortgagee must be made a party previous to the hearing of the 
 cause, 6. O. Chy. No. 439. 
 
 Wife. — Prior to the recent Statute, 42 Vict. (Ont.) cap. 22, it was held that a 
 married woman was not in respect of dower a necessary party to a bill for the 
 foreclosure of a mortgage in which she had joined to bar dower, Davidcon v, Hayes, 
 6 P. R. 27. Since that Act came into force it has been held that she is not im- 
 properly made a party to such a bill. Building & Loan Aiisociation v. Carswell, 8 
 Pr. B. 73. It has been held by the Court of Appeal that sec. 1 of this Act omy 
 
 S plies to mortgages made after its coming into force, Be Martindale v. Glarkson, 
 n. L. T., vol. 1, p. 44. 
 
 Mortgagor dead.—It mortgagor has died, bein^ still the owner of the estate and 
 intestate, his widow and heirs are necessary parties to bills both to foreclose and 
 to sell. If the suit is for a sale, the personal representative of the mortgagor is a 
 necessary party if a judgment on the covenant of the deceased mortgagor or an 
 order for deficiency upon a sale is prated for, Fisher, s. 1448, but not where all re- 
 lief against the personal estate is waived, or where the debt is for any reason not 
 payable out of the personal assets. The personal representative of the mortgagor 
 18 not generidly a necessary part^ to a suit for foreclosure simply or for redemption 
 of a mortgage in fee, for he ia neither interested in the account nor entitled to re- 
 deem, Fisher, s. 14^. 
 
 Where the mortgagor has died testate, the devisee, whether in trust or benefi- 
 cially, of the mortgagor is a necessary party in respect of so much of the equity of 
 redemption as has oeen given him. 
 
 Derivative Mortgage.— To a suit by a derivative mortgagee to foreclose the 
 mort^igor, the original mortgagee, or in case of his death his representative, must 
 
V 
 
 >'*!* 
 
 f 
 
 n the right of 
 Ad redemption 
 
 only plaintiil ; 
 not be made » 
 I the mortgage 
 :oper parties to 
 ;itled under his 
 haw V. Parks, 
 
 le whole or any 
 
 erwise his right 
 
 »ined in a suit 
 
 or foreclosure, 
 
 mortgaged, is 
 ist him on the 
 ones on Mort- 
 ise from mort- 
 a mortgagor 
 
 premises, and 
 Winterbottom, 
 
 iumbrancers to 
 I parties (their 
 ) redeem those 
 Decrees, 1086. 
 against a prior 
 hearing of tiie 
 
 'as held that a 
 
 > a bill for the 
 idEon w. Hayes, 
 bhe is not im- 
 1 V. Carswell, 8 
 if this Act only 
 lie V. Clarkson, 
 
 the estate and 
 
 > foreclose and 
 mortgagor is a 
 ortgagor or an 
 ot where all re- 
 any reason not 
 the mortg^or 
 for redemption 
 
 entitled to re- 
 
 ;rust or benefi- 
 }f the equity of 
 
 > foreclose the 
 lentative, murt 
 
 HORTOAOE SUITS. 
 
 [221] 
 
 be a party, being intere; !<>d in taking the account. But the original mortgagee 
 may redeem the derivative mortgagee, and the latter may foreclose the original mort- 
 gagee without making the original mortgagor a party, Beton, 1164. 
 
 TenaiU. — A tenant of the mortgagor is a proper party to a bill for foreclosure 
 that he may have an opportunity to redeem or in case of default may be ordered to 
 deliver up possession, Canada P. L. & S. Soc. t<. Macdonell, 22 6r. 161. 
 
 Sureties.— Hy G. O. Chy., No. 62, where plaintiff has a joint and several demand 
 against several parties, eitner as principals or sureties, he may proceed against one 
 or more of the persons severally reliable. But where there is only one principal 
 and one surety, both must be parties to a bill for foreclosure or sale if anv relief is 
 sought against the surety, Seidler v. Shepherd, 12 Gr., 450 ; Merchants Bank v. 
 Sparks^ 28 Gr., 110. A surety for payment of mortgage debt may be made a party 
 to a suit for sale, and an order for payment of any deficiency after such sale made 
 against him, G. O. Chy., No. 427. 
 
 Insolvent Mortgagor,— A fi. fa. cannot be obtained against an insolvent lnort> 
 gagor whose estate has, after he has obtained a discharge, been reconveyed to him ; 
 although it may be that the mortgagee would be entitled to call upon the mortgagor 
 to release his ecjuity of redemption. Smith v. Elliott, 25 Gr. 598. 
 
 In Suits fob Redemption. 
 
 As a general rule the mortgagor and all persons having any interest in the 
 equity of redemption may redeem. 
 
 1.— Parties Pl'intiff. 
 
 Any one who has a right to redeem is a proper party plaintiff. Upon the death 
 of the mortgagor or other owner of the equity of redemption, his heir or devisee 
 should bring the suit to redeem, Jones, 1U98, 99. If the mortgage is for a term of 
 years only, the personal representatives of mortgagor only need be made parties 
 plaintiff. 
 
 2. —Parties Defendant. 
 
 If there be no outstanding interest under the mortgagee, he is the onl^ neces- 
 sary party. If he be dead, tne heirs at law or devisees in whom the estate is vested 
 must be made parties, as also the personal representative, as being entitled to re- 
 cover the money paid, Jones, 1100. 
 
 The person who is the legal holder of the mortgage at the time of the action 
 brought, whether as mortgai;ee or assignee of the mortgage is a necessary party. 
 Where a mortgagee has absolutely assigned his whole interest in the mortgage, he 
 should not be made a party to an ordinary suit for redemption, Fisher, s. 1457, 
 but if he has assigned a part interest only, he is still a necessary party, iw also 
 is his assignee, Jones, s. 1100. 
 
 Generally no suit can be brought against the mortgagee in respect of the mort- 
 
 §aged estate, unless there be an offer to redeem him made by a person entitled to 
 o so, Fisher, s. 1455. A subsequent mortgagee may redeem a prior mortgagee, but 
 must bring the mortgagor before the Court in order to do so. Where a sale or 
 foreclosure is asked for, subject to a prior mortgage, the prior mortgagee is not to 
 be made a party, either by bill or in the Master's' oiBce, except under special cir- 
 cumstances to be alleged in the bill. 
 
 PRACTICE AND PROCEDURE. 
 
 Va/rious Beliefs. — Since the passing of the Administration of Justice Act, R. S. 
 0., cap. 49, a mortgagee need not bring actions of ejectment and on the covenant 
 at law, but the Court will (in addition to the ordinary remedies given by the Court 
 of Chancery in mortgage cases) grant an order for immediate payment on which 
 writs of fieri facias can at once issue, and also an order for immediate possession to 
 be given to the mortgagee, he being charged with an occupation rent, during the 
 time limited for redemption, Imperial L. & I. Co. v. Bouiton, 22 Gr. 121. 
 
 An order for paymeut cannot be made, unless defendant is personally liable for 
 the debt, Christie v. Dowker, 10 Gr. 199. 
 
 As to joinder of causes of action and parties under the Judicature Act, see Orders 
 XII. & XIII. 
 
ww^^Km^^ 
 
 :.■:) 
 
 
 
 
 ■I 
 
 [222] 
 
 CHANCEBT ORDERS. 
 
 Where » mortgagee filed a bill in Ohanoery for sale and at lame time proceeded 
 In ejectment againat defendant, the action at law was stayed by order in that action 
 on the ground that all remedies could be obtained in the Chancery suit, Hay v. Mo- 
 Arthur, 8 P.'B. 321. Where a mortgagee proceeded on same day to foreclose prop- 
 erty of mortgagor and his sureties, by several bills upon their respective mortgages, 
 and to sue at law in different actions, the same parties, on notes held by the plain- 
 tiff to which the mortgages were collateral, it was held that one suit only in Efquity 
 was necesBwy, as allparties might have been brought before the Court therein, 
 Merchants' Bank v. Sparks, 28 Gr. 108. 
 
 Interett.— By B. S. 0., c. 108, s. 17, interest more than six years overdue ceases 
 to be a charge on the land mortgaged, but by B. S. O., c. 61, arrears of interest up 
 to twenty years can be recovered in an action on the covenant. In order to avoid 
 circuity of action the mortgagee is allowed, in proceeding upon his mortgage in 
 Chancery, to tack as against the heirs of the deceased mortgagor the .whole arrears 
 of interest recoverable on the covenan^ Leith & Smith s JBlackHtone, p. 211. 
 Where mortgagor is seeking to redeem and there are no incumbrancers subsequent 
 to the mortgage, the mortgagee is entitled to all an-ears of interest that are recov- 
 able on the covenant, Howeren v. Bradbum, 22 Gr. 96. 
 
 Bight to call in whole prinripal.— Upon default in payment of any instalment of 
 principal or interest, the mortgagee has a right to call in the whole amount secured 
 by the mortgage, Cameron v. McRae, 3 Gr. 311. 
 
 But where, by express agreement in the mortgage, the right to call in the prin- 
 cipal money is deferred during a certain period, no default in pajmient of interest 
 during that time will enable mortgagee to file a bill to foreclose, barker v. Vine- 
 growers, 23 Gr. 179. Semble, the only remedy in respect of overdue interest in 
 such cases is by suing on the covenant, 76. 
 
 Where a bill is filed for foreclosure for default in paj'ment of interest or of an 
 instidment of principal, a defendant may move to dismiss the bill upon paying into 
 Court amount then due, for principal, interest and costs, G. 0. Chy., No. 461, and 
 this may be done even after decree, but before sale or final foreclosure, G. O. Chy.. 
 No. 462. Upon a subsequent default in payment of a further instalment of principal 
 or Interest, the decree may afterwards be enforced by order of the Court, G. O. 
 Chy., No. 463. 
 
 These orders apply notwithstanding that defendant has covenanted that upon 
 default in payment of any part of the interest, principal should forthwith, at 
 option of mortgagee, become payable, Gemmill v. Burn, 7 Pr. R. .381. 
 
 But a mortgagee is not obliged to accept payment of the whole principal and 
 interest of a mortgage on which only certain interest is due and a bill to foreclose 
 which is filed. Green v. Adams, 2 Ch. Ch. R. 135. 
 
 In proceedings under G. 0. 461, the interest is calculated up to the last gale day 
 only, Strachan v. Mumey, 6 Gr. 378. 
 
 Proceedings in action. — Under the Judicature Act, actions in respect of mort- 
 gages will be commenced by writ, O. I., r. I. 
 
 Indorsements. — By O. III., r. 7, the indorsements are to be as follows : — (see 
 Forms, No. 9). 
 
 By Mortgagee for sale and for immediate payment and possession. 
 
 The plaintiff's claim is on a mortgage dated the day of 
 
 made between [or by deposit of title deeds], and that the 
 
 mortgage may be enforced by sale, and payment to the plaintiff by the defendant 
 personuly of any btdance. flf order for immediate payment is wanted add) And 
 take notice further, that the plaintiff claims to be entitled forthwith to execution 
 against the goods and lands of vou (naming the defendant against whom this order is 
 claimed) to recover payment of amount due by you. 
 
 (If order for immediate possession is wanted add J And take notice further, that 
 the plaintiff claim.) co be entitled to an order for the immediate delivery of the 
 mort^gaged prem'S*. i to him. 
 
 By Morigagee for foreclosure and for immediate payment amd possession. 
 
 The plaintiff's cltum is on a mortgage dated the day of 
 
 , made between [,or by deposit of title deeds), and that the 
 
 mortgage may be enforced by foreclosure. 
 
MORTGAGE SUITS. 
 
 [223] 
 
 le tim« proceeded 
 rderlntnatMtion 
 suit, Hay v. Mo- 
 to forecloie pro))- 
 teotive mortgages, 
 leld by the plain- 
 lit only in Equity 
 le Court therein, 
 
 aa overdue ceaaes 
 are of interest up 
 In order to avoid 
 I his mortgage in 
 the .whole arrears 
 Kskntone, p. 211. 
 oncers subsequent 
 Bt that are recov- 
 
 any instalment of 
 e amount secured 
 
 call in the prin- 
 ntnent of interest 
 », Farker ?', Vine- 
 erdue interest in 
 
 1 interest or of an 
 upon paying into 
 hy., No, 461, and 
 mure, G. O. Chy., 
 Iment of principal 
 
 the Court, G. O. 
 
 nanted that upon 
 lid forthwith, at 
 381. 
 
 ole nrincipal and 
 a bill to foreclose 
 
 > the last gale day 
 
 respect of mort- 
 
 as follows :— {see 
 
 wesston. 
 
 day of 
 )ds], and that the 
 by the defendant 
 vanted add) And 
 nrith to execution 
 whom this order is 
 
 itice further, that 
 te delivery of the 
 
 ipottestum. 
 
 day of 
 da), and that the 
 
 (If order for immedkUe paument is vmnted add) And take notice further that 
 the plaintiff claims to be entitled forthwith to execution against the goods and lands 
 of you (naming the defendant against whom this order cla\med) to recover payment 
 of the amount due by you. 
 
 (If order for immMtiate possession is wanted add J And take notice further that the 
 pluntiS claims to be entitled to the immediate possession of the mortgaged prem- 
 Imi. 
 
 (At the end of the indortcment add) If you desire ft sale of the mortgaged prem- 
 ises instead of a foreclosure, and do not intend to doiend the action, you must within 
 the time allow-)d for appearance, file in the ofhce within named,ta notice in writ- 
 ing, signed by yourself or your solicitor, to the following effect :— " I desire a sale 
 of the mortgaged premises m the plaintiff's writ of summons mentioned, or a com- 
 petent part thereof, instead of a foreclosure, "and you must deposit the sum of $80 
 to meet the expenses of such sale. 
 
 By Mortgagor for Bedemption. 
 
 The plantiff's claim is to have an account taken of what, iffanything, is due on a 
 mortgage dated and made between [jMrties], and to redeem the 
 
 property comprised therein. 
 
 On taking the account in a mortgage suit, no more can be found due than the 
 amount claimed by the indorsement, Boyd v. Wilson, 1 Ch. Ch. K. 258. 
 
 Premiums of insurance paid by plaintiff, after bill served,Jbeing claimed by him. 
 notice of settling decree was directed to be served, English & S. Co. v. Gray, 8 Pi-. 
 B.199. 
 
 The indorsement should specify distinctly whether a Hale, or a foreclosure 
 desired, Drewey v. O'Neil, 2 Ch. Ch. R. 204. 
 
 If indorsement on bill served does not mention mortgagee's intention to apply 
 for a personal ordfer, such relief will not be granted, on a nearing pro confesno evou 
 though prayed for in bill. Armour v. Usbome, 13 L. J. N. S. 1. 
 
 Dispute Tiote.— Where a defendant merely questions the amount claimed by 
 plaintiff, it was the practice to file a memorandum in writing signed by him or his 
 solicitor, to the following effect. " I dispute the amount claimed for the plaintiff 
 in this cause." In this case four days' notice at least of time for settling the amount 
 must be served upon the defendant. Where the defendant desires to shew that 
 whole of plaintiff's claim is barred b^ the Statute of Limitations he must net up tliat 
 defence by answer and cannot raise it under a dispute note, Cattanach v. Urquhart, 
 6 Pr. R. 28 ; see also Grand Junction v. Bickfora, 1 Sup. C. R. 690. 
 
 But where the statute applies onljr to a portion of|the claim, that point can be 
 raised by filing a dispute note, Wright v. Morgan, 1 App. R. 613. ; 1 Sup. C. 
 R. 696. 
 
 There is no provision in the Judicature Act for the filing of a disputing note, as 
 under the former practice, and that part of the indorsement which formerly notified 
 the defendant that he might file such a document has been omitted from tlie forms 
 given by the Act. 
 
 Decree or JudgmerU. — Where the defendant answers the bill admitting the exe- 
 cution of the mortgage and other facts, if any, entitling plaintiff to a decree, or 
 where defendant disclaims any interest in the mortgaged premises or does not put 
 in any answer, the plaintiff can obtain from Registrar or Deputy-Registrar 
 {where bill filed in an outer county) such a decree as would, under the practice of 
 the Court have been made upon a hearing pro confesso, G. O. Chy. No. 435. This 
 applies both to redemption and foreclosure iiuitSj and to cases where the defendant 
 has been served by puolication or otherwise, or is a corporation. But where the 
 bill has not been jiersonally served, the claim of the plaintiff must be duly verified 
 by affidavit, G. O. Chy. Nos. 646, 648. Since the passing of this order the Regis- 
 trar has power to issue any decree on prcecipe in mortgage cases which the Court 
 would previously to the order have made on a hearing pro confesso, Kirkpatrick 
 V. Powell, 22 Gr. 94. But where an injunction is desired, cause must be brought 
 on for hearing. King v. Freeman, 1. Ch. Ch. R. 350. 
 
 Where any of the defendants are infants, and no defence is set up in their answer, 
 the plaintiff is to apply in Chambers upon notice to the guardian for a decree, 
 upon proof by affidavits of the due execution of the mortgage and other necessary 
 facts, G. O. Chy. No. 434. 
 
Efi 
 
 ..I 
 
 ^■n^^ 
 
 
 'i 
 
 , ;i 
 
 i ' '. 
 
 
 
 ■1 
 
 
 
 , 
 
 i! 
 
 [224] 
 
 CHANCERY OBDEBS. 
 
 In decrees or final orders for foreclosure against infants, a day to shew cause 
 after attaining twenty-one must be reserved to them, even though a sale has taken 
 place which has proved abortive, Mair v, Kerr, 2 Gr. 223 ; London & Canadian v. 
 Everett, 17 U. C.L. J. 110. 
 
 Order IX., rr. 10 & 11 of the Judicature rules now provide as follows : — 
 
 10. Where the action is in respect of a mortgage, and the plaintiff claims fore- 
 closure or sale or redemption, or where the action is for the administration of an 
 estate, or for a partition, the plaintiff shall be entitled to a judgment or order on 
 prcEcipe to the Kegistrar, Deputy-Registrar, Local Registrar, or Clerk or Deputy* 
 Clerk of the Crown and Fleas, as the case may be. 
 
 11. Where the action is for the foreclosure or redemption of a mortgage, or sale 
 of mortgaged premises, if the plaintiff is not entitled to a judgment or order on 
 pracipe, or would not according to the practice of the Court of Chancery be entitled 
 on precipe t^ such a judgment or order as he desires, he shail be entitled to the 
 proper judgment or order on notice or otherwise, according to the practice of th^ 
 Court of Chancery where a cause is heard on an order to take the bill pro confesso 
 or otherwise. See G. O. Chy., Nos. 113 et seq., 432-434. 
 
 Reference or account hy Decree, — Where there are no encumi^/ances subsequent 
 to that of the plaintiff, the account is taken and day fixed for redemption by the 
 decree. If plaintiff takes a reference to the Master to inquire as to encumbrancers, 
 it is at his peril as to costn in case there are no encumbrances, Hamilton v. Howard, 
 4 Gr. 581. 
 
 Where there are subsequent encumbrancers, a reference is necessary to the 
 Master to inquire as to them. 
 
 The decree will be drawn up ui)on production of an office copy of the bill and an 
 affidavit of service thereof, shewing same to have been duly indorsed with the 
 proper notice, G. O. Chy. No. 436. 
 
 For forms of judgments on pracipe 'inder the Judicature Act, see Forms, Nos. 
 168-170. • 
 
 Immediate Sale. — Where it appeared to be for the benefit of the infants inter- 
 ested, and plaintiffs, wlio were the only encinnbrancers, consented, an immediate sale 
 was ordered at instance of guardian of the infants without receiving consent of the 
 adult mortgagor, Cayley v. Colbert, 2 Ch. Ch. R. 431. 
 
 And under special circumstances a sale will be ordered without giving usual 
 time to redeem, even against the infant heirs of the mortgagor, Swift v, Minter, 27 
 Gr. 217. 
 
 In a suit to enforce payment of a mortgage, if the mortgagor consents to an im- 
 mediate sale, it is not necessary that subsequent encumbrancers should give their 
 -•unsent thereto, Township of Hamilton r, Stevenson, 25 Gr. 193. 
 
 But in Ewart r. Hutton (not reported), V. C. Blake held that the consent of 
 subsequent encumbrancers was necessary. 
 
 An order for an immediate sale will not be made in Cham^'fi s where the Master, 
 pursuant to a decree made in Court, has fixed a day for payment, and it has not 
 arrived. The motion must be made to the Court, Buell v, Fisher, 6 Pr. R. 61. 
 
 Mastfr'n O^o*:.— The plaintiff is to bring into the Master's office certificates from 
 the Registrar and Sheriff of the county wherein the lands lie, setting forth all the 
 encumbrances thereon, G. O. Chy. No. 443. O. XLIX., r. 8 of the tTidicature Rules 
 is as follows : — 
 
 Upon a reference under a judgment for redemption, the Master is, without any 
 special direction, to take an account of what is due to the defendant for principal 
 money and interest, and is to tax to him his costs, and also appoint a time and place 
 or times and places for payment according to the present practice of the Court in 
 that behalf. 
 
 The Master is to direct all persons appearing to have any lien charge or encum- 
 brance upon the estate in (question, to be made parties \x> the cause, and to be served 
 with a notice in the following form — common'y called notice T. The form is given 
 in notes to G. O. Chy. No. 444. 
 
 Persons so added are parties from date of Master's order making them so. Ster- 
 ling V. Campbell, 1 Ch. Ch. II. 147. 
 
 Notice of proceedings in Master's office should be served upon a mortgagor 
 against whom bill has been taken j»'o confesso where the plaintiff desires to prove a 
 claim in addition to that alleged in the bill, McCormick v. McCormick, 6 Pr. R. 208. 
 
Ifty to shew cause 
 h a sale has taken 
 Ion & Canadian v. 
 
 ide as follows :— 
 .intiff claims fore- 
 ninistration of an 
 gment or order on 
 Clerk or Deputy- 
 mortgage, or sale 
 gment or order on 
 ancery be entitled 
 >e entitled to the 
 le practice of the 
 he bill pro confesm 
 
 ances subsequent 
 ■edemption by the 
 to encumbrancers, 
 .milton V. Howard, 
 
 necessary to the 
 
 <f of the bill and an 
 indorsed with the 
 
 t, see Forms, Nos. 
 
 the infants inter- 
 , an immediate sale 
 'ing consent of the 
 
 bhout giving usual 
 Swift V, Minter, 27 
 
 consents to an im- 
 1 should give their 
 
 hat the consent of 
 
 I where the Master, 
 nt, and it has not 
 sr, 6 Pr. R. 51. 
 
 ce certificates from 
 tting forth all the 
 e (T'ldicature Rules 
 
 ter is, without any 
 ndant for principal 
 nt a time and place 
 ce of the Court in 
 
 1 charge or encum- 
 
 Be, and to be served 
 
 The form is given 
 
 cing them so, Ster- 
 
 ijpon a mortgagor 
 desires to prove a 
 rmick,6Pr.R.208. 
 
 MORTGAOE SUITS. 
 
 [225] 
 
 And as a general rule in proceeding upon a decree pro confesto the defendant 
 should have notice, though it may not be necessary to serve him with all warrants 
 issued by the Master, Robinson v. Whitcomb, 20 Gr. 415. 
 
 Any party served with notice T may apply to the Court at any time within 
 fourteen days from the date of the service to discharge the order making him a 
 party, or to add to, vary, or set aside the decree, G. O. Oby. No. 445. 
 
 The application £b the Court shou'd be brought on for hearing within the four- 
 teen days, Mcllroy v. Hawke, a Ch. Ch. R. 66 ; Wright v. Wright, V.-C. B., 29th 
 March, 1881. 
 
 Motions or petitions to add to, vary, or set aside a decree, must be set dowa with 
 Clerk of Records and Writs, at least seven days before day of hearing, and seven 
 days' notice of the hearing is be given to all parties entitled to notice, G. O. Chy., 
 No. 418. 
 
 Motions by a person made a party in the Master's office, to add to, vary, or set 
 aside a decree, must be set down under the provisions of this order, Wright v, 
 Wright, aupra. 
 
 An encumbrancer claiming to be prior to the plaintiff, can either move to dis- 
 charge the Master's order making him a party or appeal from the report of the 
 Master as to his priority, McDonald v. Rodger, 9 Gr. 75. 
 
 By 0. XLVII., r. 1, of the Judicature Orders, all applications authorized *'6y 
 these rules " to be made to the Court or a Judge shall be by motion. 
 
 In determining the right") of the parties in the Master's office, an instrument 
 can be impeached for fraud, where the question legitimately emerges during a refer- 
 ence ; for this purpose a statement should be iiled setting out the grounds upon 
 which it is impeached. Darling v. Darling, 15 U. C. L. J. 113. 
 
 Adding partia interested inequity of redemption.— Where it appears conducive 
 to t)' nds of justice that parties interested in the equity of redemption should be 
 allowed to be made parties in the Master's office, by reason of the parties so inter- 
 ested being numerous or otherwise, the Court may direct that parties so interested 
 be made parties in the Master's office, upon such terms as to the Court seems fit : 
 such order to be made only where one or more parties interested in the equity of 
 redemption are already before the Court, G. O. Chy., No. 438. 
 
 The application should be made by motion in Chambers, and notice should be 
 served on tne owners of the equity of redemption already before the Court, but not 
 on those proposed to be added, Penner v, Canniff, 1 Ch. Ch. R. 351 ; Harrison v. 
 Grier, 2 Ch. Ch. R. 440. 
 
 An application to set aside an order made in Chambers, under Order 438, should 
 be made to the Court upon petition, Tice v. Meyers, 3 U. C. L. J. N. S. 102. Chy. G. 
 O. 438, only applies to a case where the equity of redemption has been repre- 
 sented in the proceedings in the cause and does not appljr to a case where 
 the party sought to be added is entitled to the whole equity of redemption, 
 Leslie v. Hambleton, V.-C. Blake, 4th April, 1881. In this case application 
 was made, on notice to some of the defendants, to add as a party, under G. O. 
 438, a party claiming to own the equity of redemption under a deed dated 
 before bill filed, but not registered until after final order of sale was obtained 
 The defendants before the Court were the widow and children of the deceased 
 mortgagor, who was alleged to have made the deed in question. This deed, how- 
 ever, was supposed to be a forgery. An order was made adding the grantee, under 
 the alleged deed, as a party, and in the event of the order not being discharged, 
 directing an inquiry before the Master as to the parties entitled to the equity of 
 redemption. 
 
 Accounts. —Every claim sought to be proved should be supported by the affidavit 
 of the person entitled to receive the money, the mortgage should be produced, and 
 the affidavit should state distinctly the amount claimed to be due. 
 
 Where the claimant resides out of the jurisdiction an affidavit of his duly author- 
 ized agent, who has the custody of the mortgage deed, will be received. 
 
 Where the decree is in the usual form in mortgage cases, and the claimant 
 produces the mortgage deed and files the usual affidavit proving his claim, the 
 claim is prima fade proven, and the onus of reducing the amount rests upon the 
 party resisting it, Elliott v. Hunter, 24 Gr. 430 ; Court v. Holland, 8 Pr. R. 213. 
 
 V'here the mortgage in respect of which a claim is filed has been assigned, the 
 P 
 
iFiri 
 
 um 
 
 [226] 
 
 CHANCERY ORDERS. 
 
 i >' 
 
 
 n ii 
 
 oath of the assignee proving the niortgs«e account, is sufficient ;>rt7na/acte evidence 
 of the state of such account, and no affidavit is necessary from i>h« mnrtmgee or 
 any intermediate assignee denying any payment, unless the party proceeding to 
 redeem denies by oath the correctness of such statement of account, B. S. 0., c. 
 99, s. 4. 
 
 See O. XXXVII., r. 8, of the Judicature Act Rules, quoted supra. 
 
 In taking the accountSj the Master has power : — 
 
 (a) To take them with rests or otherwise. 
 
 (6) To take an account of rents and jjrofits received, or which but for wilful 
 neglect and default might have been received. 
 
 (c) To set occupation rent. 
 
 {d) To take into account necessary repairs and costs and other expenses prop- 
 erly incurred. 
 
 (e) To make all just allowances. 
 
 When the rate of interest is fixed by the instrument, till principal paid, interest 
 is allowed at the rate reserved, up to the time fixed, but there is no contract 
 implied for a continuance of that rate after that date, St. John v, Rykert, 4 App. 
 226; G. O., Chy. No. 220. 
 
 Prima facie the rate reserved by the mortgage, if not excessive, will be adopted 
 and the onus is upon the party resisting this to shew that a lower rate should be 
 allowed, Simonton v. Graham, 17 U. 0. L. J. 169. 
 
 Interest upon interest in arrear or upon fines for non-payment of principal and 
 interest, is not allowed by the Court, unless there is a contract for it, Fisher, s. 982. 
 
 Bests. — The usual mode of taking accounts against a mortgagee in possession, is 
 to set the total amount of rents and profits received by or found to be chargeable 
 to him against the whole amount due upon the mortgage debt, but where the 
 receipts of the mortgage are more than sufficient to cover the interest, the annual 
 surplus will be considered as applicable in reduction of the principal money, which 
 is called taking the account with rests, Fisher, s. 1540. Where the interest was in 
 arrear at time of taking possession, rests are not usually directed. Where plain- 
 tiff, a mortgagee of copyholds, entered into possession to avoid a forfeiture, .and 
 rents exceeded interest, annual rests were given. Carter v. James, W. N. (1881) 
 27. Grenerally, if a mortgagee be not liable to rests when he takes possession, 
 he will not become so until the principal as well as the interest of the mortgage 
 debt has been discharged, Coldwell v. Hall, 9 Gr. 110. A mortgagee taking 
 possession for his own protection is not chargeable with rests, even though 
 the mortgage was not in arrear, Gordon v. Eakins, 16 Gr. 363. But a mortgagee 
 remaining in possession after being paid in full and resisting mortgagor's right to 
 redeem, is chargeable, Crippen v. Ogilvie, 16 Gr. 568. 
 
 Under a proviso in a mortgage deed for reduction of interest on punctual pay- 
 ment, a mortgagee in possession through the default of the mortgagor is entitled, 
 on the accounts being taken, to charge the mortgagor w.'th the higher rate of 
 interest ; and also, in a proper case, with the commission paid to a receiver for col- 
 lecting the rents, Stains v. Banks, 9 Jur. N. S. 1049 ; reversed on appeal, con- 
 sidered ; Union Bank of London v. Ingram, L. R. 16 Chy. D. 53. 
 
 Bents. — Though the Court requires a mortgagee who has taken possession to be 
 diligent in realizing the amount aue, so that he may restore the estate to the mort- 
 gagor, yet he will not be responsible for any greater rent than he has actually re. 
 ceived unless it is clearly established in evidence that he knew a greater rent might 
 and could have been obtained, and that he refused or neglected to obtain the same ; 
 an account of actual receipts alone can be had unless the mortgagee has been guilty 
 of gross default, mismanagement or fraud, Merriam v. Cronk, 21 Gr. 60. 
 
 But where persons who though in fact mortgagees, enter 'uto possession of the 
 rents and profits in another character, thay are not liable to ^ .count for what they 
 might have received, but for wilful default. It is essential that they should have 
 been in possession as mortgagees and in no other character, Parkinson v. Hanbury, 
 L. B. 2 E. & I. App. 1. 
 
 Occupation Bents.— A mortgagee is charged with an occupation rent, if he has 
 been in the actual occupation of the mortgaged property, but an occupation of a 
 part is not considered as occupation of the whole, and he will [only be charged as 
 respects the part so occupied, Trulock v. Bobey, 15 Sim. 273. 
 
1 
 
 ?r 
 
 Hma facie evidence 
 
 ih" tnortofagse or 
 
 bity proceeding to 
 
 count, B. S. O., c. 
 
 supra. 
 
 ch but for wilful 
 
 ter expenses prop- 
 
 cipal paid, interest 
 ire is no contract 
 V. Rykert, 4 App. 
 
 re, will be adopted 
 nrer rate should be 
 
 it of principal and 
 ir it, Fisher, s. 982. 
 
 ;ee in possession, is 
 1 to be chargeable 
 jbt, but where the 
 nterest, the annual 
 3ipal money, which 
 the interest was in 
 ;ed. Where plain- 
 1 a forfeiture, and 
 mes, W. N. (1881) 
 e takes possession, 
 ist of the mortgage 
 
 mortgagee taking 
 •ests, even though 
 
 But a mortgagee 
 aortgagor's right to 
 
 st on punctual pay- 
 )rtgagor is entitled, 
 the higher rate of 
 
 a receiver for col- 
 ed on appeal, con- 
 3. 
 
 en possession to be 
 
 1 estate to the mort- 
 1 he has actually re- 
 i greater rent might 
 to obtain the same ; 
 figee has been guilty 
 !1 Gr. 60. 
 
 ito possession of the 
 count for what they 
 at they should hive 
 ■kinson v. Hanbury, 
 
 ition rent, if he has 
 
 an occupation of a 
 
 only be charged as 
 
 M 
 
 MORTGAGE SUITS. 
 
 [227] 
 
 Neceitary repairs, etc. —A mortgagee in possession will be allowed for proper and 
 necessary repairs to the estate but not such improvements made on his own author- 
 ity as are not necessary, though they may increase the value of the estate, Fisher 
 s. 950. He has no right to lay out money in increasing the value of the property so 
 as to make it impossible for the mortgagor to redeem. Where a mortgagee has 
 made improvements which cannot be allowed, the rule would seem to be that he 
 should only be charged with rent at the unimproved v ilue of the property. For 
 such expenditure he must get the consent of the mortgagor or must have given no- 
 tice which has been acquiesced in, Romanes v. Hern, 22 Gr, 474, 
 
 Improvements made by a defendant under the belief that he was absolute owner 
 are allowed for more liberally than to a mortgagee who knew himself to be such 
 when expending his money. And where improvements are claimed beyond those a 
 mortgagee is ordinarily entitled to make, the rule appears to be not to allow in 
 respect of these additional improvements more than the increase of value which 
 has been the result of the expenditure, Carroll v. Robertson, 15 Gr. 176. 
 
 Where mortgagors released their equity of redemption to the mortgagee who 
 thereafter signed a memorandum agreeing to reconvey upon being paid principal 
 and interest and all costs of improvements made by her, she was, on a bill to redeem, 
 held entitled to recover for all permanent and lasting improvements, though the 
 estate might not have been increased in value to an amount equal to the sum ex- 
 pended thereon, Brotherton v, Hetherington, 23 Gr. 187. 
 
 As to improvements under a mistake of title, see R. S. O., c. 95, s. 4. 
 
 The mortgagee is entitled to interest upon moneys expended for repairs and im- 
 provements, as well as upon the mortgage money, Paul v. Johnson, 12 Gr. 474. 
 
 Just AllovMnces. — What are just allowances must depend upon the circumstances 
 of each case. The following are instances :— 
 
 (1) Moneys paid for taxes. 
 
 (2) Costs necessarily or properly incurred in defending the mortgagor's title to 
 the estate, where it has been impeached, or otherwise duing what is essential to 
 protect the moitgagor's title, Seton, 1063. 
 
 (3) Of obtaining administration as a creditor of the mortgagor, 76. 
 
 (4) Premiums of insurance which the mortgagor has agreed to pay but has failed 
 to pay, but not where the insurance was not effected in conformity with the pro- 
 visions of the mortgage deed, Mcintosh v. Ontario Bank, 20 Gr. 25 ; for the mort- 
 gagee is entitled to have the benefit of the insurance, and is not liable to account 
 therefor to the mortgagor nor to give credit therefor upon his mortgage, Russell v. 
 Robertson, 1 Ch. Ch, R, 72. 
 
 (5) In some cases a commission paid to a receiver for collecting the rents of the 
 mortgaged property, Union Bank of London v. Ingram, L, R. 16 Ch. D. 53. 
 
 Sale instead of foreclosure, — Where the bill prays foreclosure, the mortgagor 
 desiring a sale is to pay into Court before the time for answering expires, the sum 
 of $80 as a deposit for the purpose of securing the performance of such terms as the 
 Court thinks fit to impose, G. O. Chy. No. 429, and see forms of indorsements 
 given in Judicature Act, No, 9. No order can be made for payment by the mort- 
 ptgor of an increased sum beyond the $80, Cruso v. Close, 8 Pr. R. 33, which 
 IS fixed by the indorsement required by the General Orders. Upon payment in of 
 this deposit, plaintiff may notify defendant that he elects to give conduct of sale 
 to such defendant, and tde defendant is thereupon to be entitled to a return of his 
 deposit, G. O. Chy. Nos. 430, 4;n. 
 
 An encumbrancer made a party in the Master's office, desiring a sale, is to 
 make a deposit therefor before Master's report settled, whereupon the Registrar is 
 to issue an order on praecipe directing a sale instead of a foreclosure, upon which 
 being done, all subsequent proceedings are to be taken as if decree had been 
 originally for sale, 6. O. Chy. No, 456. 
 
 An order can be got for this purpose by motion in Chambers after report con- 
 finned and default made by all parties entitled to redeem. Trust & Loan Co. v. 
 Reynolds, 2 Ch. Ch. R. 41. 
 
 If amount paid in by an encumbrancer is not sufficient, the plaintiff should 
 move promptly to have same increased, L. k C. v. Pulford, 7 Pr. R. 432; it is 
 too late to move after the advertisement for sale is settled— application should be 
 made before order for sde acted on, L. Sl C. v. Morrison, 7 Pr. R. 450. 
 
[228] 
 
 CHANCERY ORDERS. 
 
 The money paid into Court by a second mortgagee to obtain a sale instead of a 
 forclosure, is applicable to indemnify the first mor^agee for his costs of an abor- 
 tive attempt to sell, Corsellis v. Patman, L. R. 4 Eq. 156. 
 
 Where proceeds of sale were sufficient to pa^ plaintiff in full, but not the other 
 encumbrancers, it was held that the deposit paid in by the defendant to procure a 
 stJe, should be applied in reduction of a second mortgagee's claim, Gzowski v, 
 Beaty, 8 Pr. R. 146. 
 
 Coats. — Both in foreclosure and redemption suits the mortgagee is entitled to the 
 costs of suit, and also to all costs properly incurred by him m reference to the 
 mortgaged property for its protection or preservation, recovery of the mortgage 
 money, or otherwise relating to qa3stions between him and the mortgagor and to 
 add the amount to the sum due him on his security for principal and interest, Seton 
 on Decrees, 1059 ; Cotterell v. Stiatbon, L. R. 8 Ch. App. 295. 
 
 Apart from the question of what costs have been properly incurred by the 
 mortgagee, his right to the costs of a foreclosure or redemption suit can only be 
 lost by positive misconduct, of a vexatious, oppressive or fraudulent character, or by 
 improper resistance to the right of the mortgagor to redeem. For inst-ances, see 
 Seton on Decrees, 1060 ; Cornwall v. Brown, i 6r. 633 ; and see Jud. Act, O. L. , r. 
 1, and notes to Judic. Act, sec. 32. 
 
 In proceeding under a consent decree to redeem, the defendant being in the 
 position of a mortgagee brought in an account claiming $905 to be due— the Master 
 found the balance to be only $132— as defendant had advanced his claim honestly 
 and under a reasonable belief that the sum claimed was justly due, he was allowed 
 his costs of suit, Little v. Brunker, 28 6r. 191. 
 
 Where in a suit to foreclose, the defendant improperly resists the claim of the 
 plaintiff, the costs occasioned thereby will be ordered to be paid to the plaintiff, 
 whether the defendant redeems or not, Brysou v. Huntington, 25 Gr. 265. 
 
 Encumbrancer let in after foreclosure. — Where an encumbrancer has neglected to 
 prove his claim he may still be allowed to come in and prove notwithstanding 
 foreclosure by report or order, Cameron v. Wolf Island Co., 6 Pr. R. 91; the 
 application is properly made in Chambers where the foreclosure was simply on 
 ground of default; but the application will not be (n-anted to the prejudice of other 
 encumbrancers who have proved claims, Becher v. Webb, 7 Pr. R. 445. 
 
 Times for Redemption. — To the person entitled to the first right to redeem, it is 
 the practice to give six months from date of report (or decree with account taken) 
 and each of the parties entitled to a subsequent right of redemption has three 
 months from date of further report. The practice as *^o time for redemption is as 
 follows : (1) Under a decree for a sale one day six months off is to be given to the 
 original defendants to redeem the plaintiff and all other encumbrancers who have 
 proved claims. (2) Under a foreclosure decree a day six months from the date of 
 report is given to the first encumbrancer to redeem the plaintiff. On default being 
 made and a final order being obtained, the next encumbrancer is given a day three 
 months from date of taking account to redeem plaintiff, and so on until all the 
 encumbrancers entitled to redeem have been forclused, when a day should be given 
 to the mortgagor to redeem. 
 
 When there are more encumbranc.is than one, the mesne encumbrancers must 
 successively redeem all prior to them or be foreclosed ; and must be redeemed by, 
 or will be entitled to foreclose all subsequent to them. 
 
 Where, some of the encumbrancers are judgment creditors, and there are no 
 intermediate encumbrancers, the one period only should be given to them all to 
 redeem the prior encumbrancers, it being considered that they ought not to stand 
 in exactly the position of persons who have advanced money on a security, and also 
 on the ground of the delay if successive periods were given them. 
 
 Report. — If the Master thinks it necessary, a warrant to settle the report is to 
 be served on all parties. A Master's report should bear date the day it is actually 
 signed, Waddell v. McCoU, 14 Gr. 211. 
 
 All points which may be afterwards raised upon appeal are to be raised before 
 the Master, G. 0. Chy., No. 218. In case an appeal is allowed on any ground 
 not distinctly taken before the Master appellant may be ordered to pay costs of 
 appeal, Cummins v. Credit Valley, 21 Gr. 165. 
 
 The form of report in the case of a suit for foreclosure by a derivative mortgage is 
 aa follows : The Master first takes an account of amount due to plaintiff and deriva- 
 
 i! 
 
MORTGAGE SUITS. 
 
 [229] 
 
 a sale instead of a 
 8 costs of an abor- 
 
 1, but not the other 
 :ndant to procure a 
 claim, Gzowski v. 
 
 ;ee is entitled to the 
 in reference to the 
 ■y of the mortgage 
 i mortgagor and to 
 1 and interest, Seton 
 
 •ly incurred by the 
 n suit can only be 
 ent character, or by 
 For instances, see 
 I Jud. Act, O. L. , r. 
 
 ndant being in the 
 be due— the Master 
 his claim honestly 
 
 due, he was allowed 
 
 i*;8 the claim of the 
 lid to the plaintiff, 
 23 Or. 265. 
 
 icer has neglected to 
 >ve notwithstanding 
 . 6 Pr. R. 91; the 
 osure was simply on 
 he prejudice oi other 
 . R. 445. 
 
 ight to redeem, it is 
 with account taken) 
 idemption has three 
 for redemption is as 
 s to be given to the 
 mbraiicers who have 
 hs from the date of 
 ff. On default being 
 - is given a day three 
 1 so on until all the 
 > day should be given 
 
 encumbrancers must 
 ust be redeemed by, 
 
 rs, and there are no 
 given to them all to 
 Y ought not to stand 
 ti a security, and also 
 m. 
 
 ettle the report is to 
 the day it is actually 
 
 re to be raised before 
 lowed on any ground 
 •dered to pay costs of 
 
 lerivative mortgage is 
 D plaintiff and deriva- 
 
 tive mortgagor, and a day is appointed, six months from the making of the report, 
 for the original mortgagor to pay to the plaintiff the amount due him, not exceeding 
 the amount found due to the derivative mortgagor, and the balance (if any) after 
 deducting the amount of the plaintiff's claim from the amount found due to the de- 
 rivative mortgagor, is directed to be paid the latter. On the original mortgagor 
 being foreclosed by a final order, the Master takes a subsequent account between 
 the plaintiff and the derivative mortgagor, and appoints a day, three months 
 thereafter for the latter to redeem, Fisher's. 1676 ; Leggo's Forms, 975 (a). 
 
 Appeal from report. — Appeals from any decree, order, report, "iling or other 
 determination of a Master, are to be brought on for argument before a Judge in 
 Chambers within a month, not including vacation, of the making thereof — a 
 seven days' notice of appeal must be given, which should set out the grounds of ob- 
 jection, G. vy. Chy., No. 642. The report must be filed before it can be appealed 
 from, Hayes v. Hayes, 17 U. C. L. J. 157. Under the practice before this order 
 it was sufficient if notice of appeal was given within fourteen days from the filing 
 of the report, G. 0. Chy., No. 253, Grimshaw v. Parks, 6 U. C. L. J. O. S. 142. 
 
 The provisions of the Judicature Rules as to appeals are as follows : — 
 
 13. Any person affected by any order or decision of the County Judge or officer 
 aforesaid may appeal therefrom to a Judge of the High Court at Chambers. 
 
 (a) Such appeal may be made notwithstanding that the order or decision was in 
 respect of a proceeding or matter as to,which the Judge or officer aforesaid had jur- 
 isdiction only by consent. 
 
 (b) The appeal shall be by motion, on notice served within 4 days after the de- 
 cision complained of ; or within such further time as may be allowed by a Judge of 
 the High Court or by the County Court Judge or officer aforesaid whose decision 
 is complained of. 
 
 (c) The motion shall be made within 8 days after the decision has been made 
 which is appealed against or within such further time as may be allowed as afore- 
 said. 
 
 (d) The appeal shall be no stay of proceedings unless so ordered by a Judge of 
 the High Court or by the Judge or officer whose decision is cumplained of. 
 
 Confir»,Mtion. — A report must be filed fourteen days and have been made thirty 
 days before it is confirmed, re Eaton, 8 Pr. R. 289. 
 
 Such reports as are merely continuing accounts taken by former reports, com- 
 puting subsequent interest or which involve mere calculation, do not require con- 
 nrmation. Smith's Chy. Practice, I. 1040, n. And see re Yaggie, 1 Ch. Ch. 
 R. 168. 
 
 Where a decree ordered payment forthwith after the making of a report, it was 
 held that report did not require to be confirmed before execution could issue under 
 it, Jellett V. Anderson, 17 U. C. L. J. 24. But a report must be filed before an 
 execution can issue under it, lb. 
 
 If a report may be said to be confirmed upon the expiration of the time for 
 appeal, it will, since the Judicature Act, become confirmed, unless notice be served 
 within four days from the decision complained of, see 0. XLIX. r. 13, ante. 
 
 Proceedings upon payment. — In case of payment by any party according to the 
 rep art, the party to whom payment is made is to convey the premises, free and 
 clear of all encumbrances done by him, and deliver up all deeds and writings in his 
 custody or power, relating thereto, upon oath, to the party making payment, or to 
 whom he may appoint, G. O. Chy. No. 450. 
 
 The mortgagee is not obliged to assign the mortgage debt to the mortgagor on 
 redemption ; or to a purchaser, when the security is paid off out of the proceeds of 
 a sale under a decree ; or to convey to any other person as a mortgagee in his own 
 place : being cnly bound to reconvey the estate to the owner of the equity of redemp- 
 tion, Thompson v. McCarthy, 13 U. C. L. J. N. S. 226; Fisher, s. 1714. 
 
 A mortgagor or other party entitled to the equity of redemption has a right to 
 obtain at his own expense from the mortgagee a re-conveyance of tho mortgaged 
 premises, including a covenant against encumbrances. He is not obliged to accept 
 the simple discharge of mortgage prescribed by the Statute, McLennan v. McLean, 
 27 Gr. 54. 
 
f^^""^"" 
 
 [230] 
 
 CHANCERY ORDERS. 
 
 
 
 V>' '■ 
 
 i ' p 
 
 0. XLIX., r. 12 of the Judicature Rules provides as follows : — 
 
 In a suit for foreclosure or sale upon payment by the defendant, or in a suit for 
 redemption upon payment by the plaintiff, or payment of the amount found due, 
 the plaintiff or defendant shall, unless the decree otherwise directs, assign and con- 
 vey the mortgaged premises in question to the defendant (or plaintiff, as the case 
 may be,) making the payment, or to whom he may appoint, free and clear of all 
 encumbrances done by him, and deliver up all deeds and writings in his custody or 
 power relating thereto, upon oath, and in case of a corporation the affidavit shall 
 be made by the officer thereof having the custody of such deeds and writings. 
 
 Default in foreclosure suits.— In default of payment being made according to the 
 report the plaintiff is to be entitled, on an ex parte application to a final order of 
 foreclosure against the party making default, 6. 0. Chy. No. 451. 
 
 The material in support of this order is : — 
 
 1. Certificate of the cashier, manager or agent of the bank into which payment 
 was to be made, shewing that money had not been paid into the bank before, as 
 well as, on, or since, the day appointed for that purpose, G. O. Chy. No. 257; Farrell 
 V. Stokes, 1 Ch. Ch. R. 201. 
 
 2. An affidavit of the execution of such certificate. 
 
 3. An affidavit of the plaintiff or party entitled to receive the money, shewing 
 that he has not been paid, has not been in possession of the mortgaged property, nor 
 in the receipt of the rents and profits. 
 
 Where plaintiff resides out of the jurisdiction, and the affidavit of non-payment 
 is made by an agent, it must be shewn where the custody of the mortgage deed has 
 been, that he is the agent duly authorized to receive the money, and that there is 
 no other agent, Rae v. Shaw, 1 Ch. Ch. R. 209 ; Powers v. Merrinan, 1 Ch. Ch. 
 R. 225 ; Taylor v. Cuthbert, 1 Ch. Ch. R. 240. 
 
 The affidavit as also the bank certificate should bear date after the day appoint- 
 ed for payment, Blong v. Kennedy, 2 Ch. Ch. R. 453 
 
 Where plaintiff has been in possession or in receipt of rents and profits an order 
 for a new account and appointing a new day for payment will be made though 
 plaintiff was merely in possession as caretaker. Cummer v. Tomlinson, 1 Ch. Ch., K. 
 235. 
 
 But where plaintiff enters into possession or receives rents and profits after the 
 day appointed for payment, he was held entitled to a final order of foreclosure 
 without a new account being taken, Greenshields v. Blackwood, 1 Ch. Ch. R. 60; Con- 
 stable V. Howick, 5 Jur. N. S. 331 ; Frees v. Coke, L. R., 6 Ch. App. 650. 
 
 O. XXXVII., rr. 9 & 10 of the Judicature Rules are as follows : — 
 
 9. In a redemption suit in default of payment being made according to the re- 
 port, the defendant is to be entitled on an ex parte application in Chambers to a final 
 order of foreclosure against the plaintiff, or to an order dismissing the bill with costs 
 to be paid by the plaintiff to the defendant, forthwith after taxation thereof. 
 
 10. In a redemption suit where the plaintiff is declared foreclosed, directions 
 may be given either by the final order foreclosing the plaintiff, or by subsequent 
 orders, that all necessary inquiries be made, accounts taken, and proceedings had for 
 redemption or foreclosure, or redemptic a or sale, as against any subsequent incum- 
 brancers, or for the adjustment of the relative rights and liabilities of the original 
 defendants as among themselves, and such order shall have the same force and effect 
 as a judgment obtained at the suit of the orignal defendant. 
 
 Change in Accounts. — Where t*>e state of the account is changed by payment 
 of money, receipt of rents and profits, by occupation rent, or otherwise, before the 
 final order for foreclosure or sale is obtained, the party to whom the mortgage 
 money is payable, may give notice to the party by whom the same is payable, that 
 he gives him credit for a sum certain, to be named in the notice, and claims that 
 there remains due in respect of such mortgage money, a sum certain, to he also 
 named in the notice, G. O. Chy. , No. 457. Upon the application for such final 
 order, if the Judge thinks the sums named in the notice are proper to be allowed 
 and paid under the circumstances, the order is to go without further notice, unless 
 directed otherwise, lb. 458. This notice must be given before the day for payment 
 arrives, Knottinger v. Barber, 1 Ch. Ch. R. 258. 
 
 The party by or to whom the mortgage money is payable, may apply in Ghr.m- 
 bers for an appointment or reference to ascertain and fix the amounts proper to 
 
MORTGAGE SUITS. 
 
 [231] 
 
 nt, or in a suit for 
 mount found due, 
 !ts, assign and con- 
 untifiF, as the case 
 ie ana clear of all 
 8 in his custody or 
 the af&davit shall 
 and writings. 
 
 le according to the 
 to a final order of 
 1. 
 
 ito which payment 
 ;he bank before, as 
 y. No. 257; Farrell 
 
 le money, shewing 
 :aged property, nor 
 
 it of non-payment 
 mortgage deed has 
 % and that there is 
 errinan, 1 Ch. Ch, 
 
 er the day appoint- 
 
 nd profits an order 
 11 be made though 
 ison, 1 Ch. Ch., R. 
 
 ad profits after the 
 rder of foreclosure 
 3h. Ch. R. 60; Con- 
 App. 650. 
 
 va : — 
 
 ocording to the re- 
 Chambers to a final 
 r the bill with costs 
 tion thereof. 
 
 reclosed, directions 
 , or by subsequent 
 >roceedings had for 
 subsequent incum- 
 ities of the original 
 me force and effect 
 
 inged by pajrment 
 iierwise, before the 
 hom the mortgage 
 ne is payable, that 
 e, and claims that 
 certain, to he also 
 ion for such final 
 >per to be allowed 
 ther notice, unless 
 e day for payment 
 
 .y apply in Chr.m- 
 amounts proper to 
 
 be allowed and paid, and such application may be either ex parte, or upon notice as 
 the Judge may direct, G. 0. Chy., Nos. 459, 460. 
 
 Where the suit becomes abated between date of report, and time fixed for pay- 
 ment in by subsequent encumbrancers, a new account must be taken after revivor, 
 and a new day for payment fixed, giving the party who is to pay, an ftdditional 
 time to redeem equal to the time remaining to nim under the terms of the report 
 when the abatement took place, Biggar v. Way, 8 Pr. R. 1.58. 
 
 Payment into Court. — Money ordered to be paid into Court is to be paid into the 
 Canadian Bank of Commerce, and in no other manner, 6. O. Chy. No. 352 ; 
 Bloomfield v. Brooke, 6 Pr. R. 265. 
 
 It may be paid in to the joint credit of the Referee in Chambers and of the 
 party entitled to receive the money, or to the credit of the latter alone, G. 0. Chy. 
 No. 256. 
 
 Where money is to be paid at some time and place to be appointed by the 
 master, he is to appoint same to be paid into some bank at its head office or at its 
 branch or agency, to the joint credit of the party to whom same is payable, and of 
 the Referee in Chambers, the party to whom the money is payable naming the 
 bank desired by him, and the master naming place for such payment, G. 0. Chy. 
 No. 255. By the Juri. Act, O. LVI., r. 5, the Registrar of the Court of Chancery 
 is to act as accountaut until and unless some other person is appointed accountant. 
 
 Where before day for payment agency of bank is closed, it is necessary to take 
 a new account and fix a new day for payment, and order must be served on party 
 who has to pay, King v. Connor, 1 Ch. Ch. R. 274. 
 
 Where money is ordered to be paid into Court, payment to the solicitor of the 
 party entitled to receive the money, is not good payment, Blackburn v. Sheriff, 1 
 Ch. Ch. R. 208. 
 
 But where a solicitor is retained to collect moneys and to tr ke such proceedings 
 as may be proper for that purpose, it would seem that payment to him would be a 
 
 food payment, and would effectually discharge the party making such payment, 
 loody V. Tyrrell, 6 Pr. R. 313. 
 
 The mere fact that a solicitor is in possession of a mortgage deed executed by 
 his client does not authorize him to receive the mortgage money for his client. He 
 must have an express authority for that purpose. Ex parte Swinbank, L. R. 11 Ch. 
 D. 525. 
 
 The mortgagee's solicitor is not in general empowered merely by virtue of 
 possession of security to receive either principal or interest of mortgage debt, or to 
 receive the principal by virtue of an authority to receive the interest, Fisher 1284 ; 
 Palmer v. Winstanley, 23 C. P. 586. 
 
 Payment uut. — If the money is paid into a bank, to the sole credit of the party 
 entitled to receive it, he may obtain same without order of the Court, G. O. Chy., 
 No. 256. 
 
 Where consent of party, paying in money to joint credit of Referee and another 
 is produced, Referee will sign a joint cheque with party to receive money for pay- 
 ment out to him. 
 
 Where defendant refused to consent to payment out of mortgage money, plaintiff 
 may obtain an order for such payment,but at his own cost, Bernard v. Alley, 2 Ch. 
 Ch. R. 91. ; and the application must be made on notice, Totten v. Mclntyre, 2 
 Ch. Ch. R. 462. A power of attorney or other written aiithority is necessary to 
 authorize payment out of Court to the solicitor of the party entitled to receive it, 
 Swan V. Marmora, 2 Ch. Ch. R. 155. 
 
 Enlarging time fw payment. — The time fixed for payment of the mortgage money 
 may be enlarged on application on sufficient grounds made on motion in Chambers 
 by the person entitled to redeem, Fisher, s. 1688. 
 
 It is only in a foreclosure suit as a general rule, and not in a suit for redemption, 
 that this indulgence is granted ; because in the latter case, the mortgagee comes to 
 the Court for relief, professing that his money is ready, but in a foreclosure suit, 
 he redeems by compulsion. But on special circumstances, time has been enlarged 
 even in a redemption suit. In foreclosure suits, the time may be enlarged more 
 than once, lb. s. 1689. But the enlargement is not given, as of course, even upon 
 the first application, some excuse for the default must be shewn, and a reason- 
 
m^ 
 
 :Ht ^!ii 
 
 IL W 
 
 ;!!:: 
 
 ''I|i' 
 
 
 [232] 
 
 CHANCERY ORDERS. 
 
 able prospect of getting the money, if the time be granted, and it should appear 
 that the security is ample. The terms upon which an enlargement is UBually 
 granted is payment of the amount certified to be due for interest and costs, and 
 also the costs of the application forthwith, Street v. O'Reilly, 2 Ch. Ch. R. 270 ; 
 Cameron t*. Cameron, 2 Ch. Ch. R. 373. 
 
 Where defendant had been hampered and hindered in selling or raising money 
 on the lands in consequence of an advertisement signed and circulated by plaintiff's 
 solicitors, time was enlarged and no costs of application were given to plaintiff, 
 Gilmour v. Meyers, 2 Ch. Ch. R. 179. 
 
 Opening /orecloture. — The order for foreclosure absolute being final in form only, 
 can be r<9ouened in the discretion of the Court, having regard to all the circum- 
 stances of tne case, and persons taking propertv under the order take it subject to 
 such discretionary power, Campbell v, Holyland, L. R. 7 Ch. D. 166. 
 
 The applicant must not only shew that he will be able to redeem if further time 
 be given, but must also account satisfactorily for non-payment at the proper time, 
 Fisher, s. 1695 ; Johnson v. Ashbridge, 2 Ch. Ch. R. 232. 
 
 The forclosure may also be opened by the act of the mortgagee ; if he sue the 
 morteagor upon his covenant or bond, after foreclosure, upon finding the estate 
 insufficient to satisfy the mortgage debt, the mortgagor acquires a new right to 
 redeem, Fisher, s. 1697; Mills v. Choate, 2 Ch. Ch. R. 433. 
 
 But if mortgagee proceed first upon his covenant or bond and obtain part payment 
 of his debt, he may still foreclose tor the residue. 
 
 If after foreclosure the mortgagee has sold the estate to a stranger so as to be 
 unable to restore it should the mortgagor redeem, he will not be permitted to sue 
 the mortgagor for any deficiency, Fitiher, s. 1698. 
 
 This rule does not apply where mortgagee has sold under a power of sale in the 
 mortgage, Fisher, s. 1699. 
 
 There is a clear distinction between enlarging time for redemption before the 
 day arrives for payment and opening foreclosure after final order. In the former 
 case slight circumstances will induce the Court to grant the order ; in the latter it 
 must be shewn that the person who seeks to set order aside fully intended and was 
 prepared to pay the money on the day, but was stopped by some accident from 
 complying with the exigencies of the order. Patch v. Ward, L. R. 8 Ch. App. 212. 
 
 Fraud. — Foreclosure will also be opened if the decree has been obtained by false 
 evidence or other fraudulent or collusive practice, Fisher, s. 1700. 
 
 Bv:*- mere constructive fraud is not sufficient, the Court must be satisfied that 
 the decree was obtained by the positive and actual fraud and contrivance of the 
 party obtaining it. Patch v. Ward, L. R. 3 Ch. App. 213. 
 
 Default in Redemption Suit. — Where default is made by the plaintiff in a redemp- 
 tion suit, an order will be made dismissing the Bill on production of the usual 
 proof of non-payment. Dismissal of a suit to redeem by reason oi default in pay- 
 ment of the money, or for any other cause than for want of prosecution, operates 
 as a judgment of toreclosure, because the mortgagor admits by his suit the title of 
 the mortgagee and the defendant, and if he does not discharge it, is not allowed to 
 harass the mortgagee by another suit for the same purpose, Fisher, s. 1779, 80. 
 
 In a redemption suit, if the plaintiff does not redeem the defendants, or such of 
 them as he is ordered to redeem, the bill need not be dismissed ; but where there 
 are other defendants, in lieu of the Bill being dismissed, the plaintiff may be de- 
 clared foreclosed, and direction may be given, either by the decree or by subse- 
 quent orders, as to the relative rights and liabilities of the defendants as amongst 
 tnemselves ; and such proceedings are in such case to be thereupon had, and with 
 the same effect as in a foreclosure suit, 6. 0. Chy. No. 466. 
 
 And where a second mortgagee files a bill of redemption and makes default in 
 paying at the time appointed, the mortgagor (as well as the first mortgagee) has, 
 under General Order 466, the option of having a day thereupon apijointed for re- 
 demption of the first mortgage oy the mortgagor— there is nothing in the General 
 Order to prevent any party availing himself of its provisions, McKinnon v. 
 Anderson, 18 Gr. 684. 
 
 And see O. XLIX., rr. 9 & 10 of Judicature Rules ante. 
 Similar material is necessary for final order of sale as for final order of fore- 
 closure above referred to. 
 
1 it should appear 
 ement is usually 
 98t and coats, and 
 
 2 Ch. Ch. R. 270 ; 
 
 : or raising money 
 ated by plaintiif*8 
 given to plaintiff, 
 
 final in form only, 
 to all the circum- 
 take it subject to 
 166. 
 
 m if further time 
 ; the proper time, 
 
 ree ; if he sue the 
 finding the estate 
 a new right to 
 
 tain part payment 
 
 ranger so as to be 
 permitted to sue 
 
 war of sale in the 
 
 mption before the 
 er. In the former 
 ; in the latter it 
 intended and was 
 >me accident from 
 I. 3 Ch. App. 212. 
 
 i obtained by false 
 
 be satisfied that 
 contrivance of the 
 
 Jntiff in a redemp- 
 :tion of the usual 
 of default in pay- 
 secution, operates 
 8 suit the title of 
 , is not allowed to 
 er. s. 1779, 80. 
 
 ndants, or such of 
 ; but where there 
 intiff may be de- 
 jree or by subse- 
 dants as amongst 
 on had, and with 
 
 makes default in 
 t mortgagee) has, 
 appointed for re- 
 ng in the General 
 >s, McKinnon v. 
 
 lal order of fore- 
 
 
 MORTGAGE SUITS. 
 
 [233] 
 
 SaU. — Where decree directs a sale instead of a Toreclosure on default in payment, 
 then on default being made, and an order for sale obtained, the premises are to be sold 
 with the approbation of the Master, and he is to settle the conveyance to the pur- 
 chaser in case the parties differ about the same. And the purchaser is to pay his 
 purchase money into Court, to the credit of the cause, subject to the further order 
 of the Court, G. O. Chy., No. 453. 
 
 After decree or final order for sale has been obtained, it must be taken into the 
 Master's office. He will grant a warrant to settle advertisement and conditions of 
 sale which must be served on all necessary parties. At the time appointed by this 
 wairant, the party having the conduct of the sale is to bring into the Master's 
 office a draft advertisement, G. 0. Chy., No. 373. Where a party not having the 
 conduct of the sale, is ued advertisements of sale, etc., an injunction was granted 
 to restrain him. Dean v. Wilson, L. R. 10 Ch. D. 137. Usuallv the plaintiff has 
 the conduct of the sale, but if he desires to bid thereat it will be given to some 
 other party ; if all parties to the suit desire to bid, a solicitor not connected with 
 any of the parties will be appointed to conduct the sale, Daniel (5th ed.) 1153 ; 
 Ramsay v. McDonald, 8 Pr. R. 283. 
 
 At time named in the warrant, the Master is to settle the advertisement, to fix 
 time and place of sale, to name auctioneer, and make every other necessary ar- 
 rangement perparatory, G. O. Chy., No. 378. 
 
 The advertisement is to contain the following particulars : 
 
 1. The short style of cause. 
 
 2. That the sale is in pursuance of an order of the Court. 
 
 3. The time and place of sale. 
 
 4. A short and true description of the property to be sold. 
 
 5. The manner in which the property is to be sold, whether in one lot or several, 
 and if in several, in how many anil what lots. 
 
 6. What proportion of the purchase money is to be paid down bv way of deposit 
 and at what time or times, and whether the residue of such purchase money is to 
 be paid with or without interest. 
 
 7. Any particulars in which the proposed conditions of sale differ from the 
 standing conditions, G. O. Chy., No. 377. 
 
 The advertisement should set out all the improvements on the property, and 
 should be as short as possible, Heward v, Ridout, 1 Ch. Ch. R. 244. ; Baxter v. 
 Finlay, 1 Ch. Ch. R. 230. 
 
 The standing conditions of sale are given in note to, G. O. Chy., 397. 
 
 Where it is thought expedient, the Master may fix an upset price or reserved 
 bidding, and that this has been done must be notified in the conditions of sale, G. 
 0. Chy. No. 380. 
 
 Liberty to have a reserved bid was granted on a motion in Chambers, where it 
 was accidentally omitted in settling terms of sale, on payment by plaintiff of costs 
 of the application, Fraser v. Bens, 1 Ch. Ch. R. 71. 
 
 All parties may bid without taking out an order for the purpose, except the 
 party having the conduct of the sale, and except any trustees, agtsnts, and other 
 persons in a fiduciary situation ; and where any parties are to be at liberty to bid, 
 it must be notified in the conditions of sale, G. O. Chy. No. 381. 
 
 The adver'iisement is to be inserted by the party conducting the sale, at such 
 times and in such manner as the Judge or Master appointed at the meeting before 
 mentioned, G. O. Chy. No. 382. 
 
 The Master or his Clerk is to conduct the sale where no auctioneer is employed' 
 6. O. Chy. No. 383. 
 
 Biddings need not be in writing, but a written agreement is to be signed by the 
 purchaser at the time of sale, G. O. Chy. No. 384. 
 
 A solicitor having the conduct of a sale cannot withdraw the property offered 
 after a bid has been made, MoAlpine v. Young, 2 Ch. Ch. R. 85. 
 
 A sale under the decree of the Court cannot be adjourned by the vendor's solicitor 
 without the authority of the Court, O'Connor v. Woodward, 6 Pr. R. 223. 
 
WW 
 
 ' m 
 
 f;'l 
 
 [234] 
 
 CHANCERY ORDERS. 
 
 Upon a 8ale without reserve, it is not open to the vendor to refuse a bid, how- 
 ever BDiall, O'Connor v. Woodward, 6 Pr. R. 223. 
 
 The "highest bidder" is the "purchaser" under the General Orders, and the 
 omission of the auctioneer to declare him so cannot deprive him of his position, 
 McAlpine v. Young, 2 Ch. Ch. R. 171. 
 
 The deposit is to be paid to the vendor, if present, or if not, to his solicitor, at 
 the time of sale, and is to be forthwith paid by him into Court, G. O. Chy. No. 385. 
 
 Where the party having the ccmduct of the sale neglects to pay into Court the 
 deposit paid to him by the purchaser at the time of sale, the Court will, on the ap- 
 plication of the purchaser, order him to do so, Crooks t'. Glenn, 1 Ch. Ch. R. 354. 
 
 After the sale is concluded, the auctioneer, where one is employed, is to make 
 the usual affidavit, according to the present practice ; and where no auctioneer is 
 employed, the Master or his clerk is to certify to the same effect, G. O. Chy. No. 
 386. 
 
 The report on sale is to be in the form set forth in Schedule Q, or as near thereto 
 as circumstances permit. See the form in notes to G. O. Chy. No. 387. 
 
 Where a sale has been had and the directions of the Master have not been foK 
 lowed, the vendor will have to make out, at his own expense, that all parties in- 
 terested have not been injured, in order to have sale confirmed, Royal Canadian 
 Bank v. Dennis, 4 Ch. Ch. R. 68. The confirmation of a sale may be opposed be- 
 fore the Master and the sale disallowed, on grounds which would afford material 
 for a motion to set aside the sale, Beaty v. Radenh^rst. 3 Ch. Ch. R. 344. The 
 purchaser should be notified, lb. A purchaser at a sale under a decree, is not 
 bound by any irregularity in the proceedings, so as to cause him to lose the benefit 
 of the purchase, Dickey v. Heron, 1 Ch. Ch. R. 14 J. 
 
 Where a purchaser had obtained a conveyance from a mortgagee, who had ob- 
 tained a final order of foreclosure, and the decree and final order were regular on the 
 faceof them:— Held that the purchaser was not bound to inquire into the regu- 
 larity of the proceedings upon which decree and final order were founded, and was 
 not affected by irregularities in the foreclosure proceedings, of which he was 
 ignorant, Gunn v. Doble, 15 Gr. 655. See McLean v. Grant, 20 Gr. 76 ; Shaw v, 
 Crawford, 4 App. R. 371. 
 
 A sale must be objected to by motion to the Court to set aside the same ; and 
 notice of the motion must be served upon the purchaser and on the other parties 
 to the cause, but the biddings are only to be opened on special grounds wnether 
 the application is made before or after the report stands confirmed. G. O. 
 Chy. No. 388. 
 
 Confirming and setting aside safe. — Where an irregularity had occurred in 
 advertising a sale, but no injury had thereby accrued, and a fair price had been 
 obtained, the Court confirmed the sale, Cayley v. Colbert, 2 Ch. Ch. R. 455. 
 
 But not where the master had refused to approve of the sale, Thomas v. 
 McCrae, 2 Ch. Ch. R. 456. 
 
 Where a party not authorized to hi ' under the general orders and conditions of 
 sale, as for example the party having the conduct of the sale, has been declared 
 the highest bidder, he should, as early as possible after the sale, apply by notice of 
 motion returnable in Chamber, which should be served on the other parties to the 
 cause, that notwithstanding that he has not obtained leave to bin, he may be 
 certified to be the purchaser at the price bid by him at such sale, Daniel 
 (5thed.), p. 1160. 
 
 This application should be made before the report on sale is signed, and will 
 not be granted if any of the parties to the suit object, Crawford v. Boyd, 6 
 Pr. R. 278. 
 
 Such an order cannot be made by a local Master who has made a decree for 
 partition or administration, Re Laycock, 17 U. C. L. J. 171. 
 
 The solicitor of the party having conduct of sale cannot purchase at such sale, 
 Guest V. Smythe, L. R. 5. Ch. App. 551. 
 
 Where an unauthorized person is the highest bidder, the sale is not absolutely 
 void, but only voidable at the instance of those beneficially interested in the 
 purchase money, Crawford v. Boyd {supra). 
 
J 
 
 MOBTOAQE SUITS. 
 
 [235] 
 
 fuse a bid, how< 
 
 1 Orders, and the 
 of his position, 
 
 3 his solicitor, at 
 O. Chy. No. 385. 
 
 y into Court the 
 ■t will, on the ap- 
 Ch. Ch. R. 354. 
 
 oyed, is to make 
 no auctioneer is 
 G. O. Chy. No. 
 
 or as near thereto 
 0.387. 
 
 ive not been fol- 
 hat all parties in- 
 , Koyal Canadian 
 y be opposed be- 
 i afford material 
 3h. R. 344. The 
 p a decree, is not 
 to lose the benefit 
 
 igee, who had ob- 
 'ere regular on the 
 re into the regu- 
 founded, and was 
 of which he was 
 Gr. 76 ; Shaw v. 
 
 ide the same ; and 
 the other parties 
 grounds wnether 
 
 :on{irmed. G. O. 
 
 had occurred in 
 r price had been 
 Ch. R. 455. 
 
 sale, Thomas v. 
 
 and conditions of 
 has been declared 
 apply by notice of 
 ther parties to the 
 J bid, he may be 
 luch sale, Daniel 
 
 is signed, and will 
 wford V. Boyd, 6 
 
 aade a decree for 
 
 shase at such sale, 
 
 I is not absolutely 
 interested in the 
 
 
 
 Opening biddinffs,— An offer of an advanced price is not a sufBoient ground 
 whetner purchaser is a stranger or a party who has obtained leave to bid, Alitohell 
 V. Mitchell, U Pr. R. 232. 
 
 An inadequate description of the property in the advertisement is sufficient 
 ground, if calculated to mislead or deter the public from purchasing, but not 
 otherwise, Greswick v. Thompson, 6 Pr. R, 5'i ; and see Rodgers v. RodgerH, 
 13 Gr. 143. 
 
 Abortive «a'e.— Where the sale has proved abortive for want of bidders, the 
 property may be advertised and put up fus sale again without further order, Sher- 
 wood V. Campbell, 1 Ch. Ch. R. 299. 
 
 Where a sale has proved abortive by reason of the purchaser refusing to complete 
 it, it is necessary to obtain an order in Chambers for a re-sale on default of payment 
 in by the purchaser in a limited time, and the purchaser will be directed to pay 
 the costs of the motion and the deficiency, if any, on such re-sale. Crooks v. Crookti, 
 4Gr. 376. 
 
 Rut if purchaser has become insolvent and unable to complete the purchase he 
 will be absolved from it, re Heeley, 1 Ch. Ch. R. 54. 
 
 An order for payment in by the prrchaser within a limited time, directing in de- 
 fault a re-sale and payment of deficiencv, requires personal service upon the purchaser 
 unless otherwise ordered, and it is irregular to issue an executicm for the amount 
 ordered to be paid in before a re-sale can take place, per the Referee in Myers v. 
 Myers, 16th March, 1881. 
 
 Foreclosure after abortive sale. — Where a sale has proved abortive an order will 
 be made foreclosing all the defendants who have not already been foreclosed. The 
 
 f>roper course is to serve a notice of motion upon the mortgagors and encumbrancers 
 if any) who have proved claims, Odell v. Doty, 1 Ch. Ch. R. 207. 
 
 The usual two clear days' notice is sufficient. 
 
 Where a foreclosure is asked after an abortive sale the usual order is to give 
 parties entitled to redeem three months' time and in default foreclosing them, Gird- 
 lestone v. Gunn, 1 Ch. Ch. R. 212. 
 
 An encumbrancer who has obtained a sale instead of a foreclosure cannot be 
 foreclosed without being given usual time to redeem, London & Canadian v. Pul- 
 ford. Referee 19th Oct. 1878. 
 
 Payment of purchase money. — At any time after the confirmation of the sale the 
 purchaser may pay his purchase money and interest, if any, or the balance thereof, 
 mto Court without further order, upon notice to the party having the conduct of 
 the sale, and when he is entitled to be let into possession of the estate, he may, if 
 possession is wrongfully withheld from him, proceed at his own expense to obtain 
 an order against the party in possession for the delivery thereof to him, or may 
 call upon the vendor to cause possession to be delivered to him, G. O. Chy. , No. 3S'J. 
 
 Where money is ordered to be paid into Court, payment to solicitor of party en- 
 titled is not a good one, Blackburn v. Sheriff, 1 Cfh. Ch. R. 208 ; and see supra 
 "Payment into Court." 
 
 On a sale under a decree the purchaser, except under special circumstances, will 
 not be compelled to pay his purchase money into Court until he has accepted or 
 approved of the title, or the Master has reported that the vendor can make a good 
 title. Ell wood v. Pierce, 7 Pr. R. 427; McDermid v. McDermid, 8 Pr. R. 28. 
 
 Until the report is confirmed, the bidder is not considered as the purchaser, and 
 is not liable for any loss by fire or otherwise, which may happen to the estate in 
 the interim, Stephenson v. Bain, 8 Pr. R. 260. 
 
 Upon a sale by tender where damages were occasioned to the premises sold be- 
 tween the tender and its acceptance, it was held that the purchaser was not entitled 
 to compensation on the ground that there was no binding contract between the 
 vendor and purchaser until the acceptance of the tender, and that the tender must 
 be considered as a continuing offer from day to day until accepted, Tracey v. Ire- 
 dale, per V.-C. Proudfoot, 1881. 
 
 Examination of title, — After a sale under an order is confirmed, the vendor is, 
 forthwith upon demand, to deliver an abstract of title to the purchaser, and if the 
 purohaser does not serve objections within seven days, he is to be deemed to have 
 
 I 
 
[236] 
 
 CHANCERY ORDERS. 
 
 f -'i 
 
 f' 
 
 accepted the abstract as sufficient. If obiections are served, the vendor b to 
 answer them within fourteen day , and if the purchMer is still dissatisfied, and if 
 the parties cannot otherwise agree, either party may obtain from the Master a 
 warrant to consider the abstract, O. O. Chy., Nos. 390*396. 
 
 On receiving an abstract of title the purchaser has seven days within which to 
 object to the completeness of the abstract, and after any question of its complete- 
 ness is disposed of and the abstract made perfect in the nense of being complete, 
 seven days to object the title ; if, however, he takes his objections to the title in the 
 first instance, the Master will not go into the question of the perfectness of the 
 abstract, but will confine the purchaser to the objections he has made to the title, 
 McManus v. Little, 3 Ch. Oh. B. 263. No objections other than those specifically 
 taken will be entertained by the Master. An abstract is complete when it contains 
 with sufficient clearness and sufficient fulness the effect of every instrument which 
 constitutes part of the title. A purchaser on receipt of the abstract is bound, under 
 G. O. 390-3, within seven days, to take all the objections he intends to take to the 
 sufficiency of the abstract. These being removed it is not open to the purchaser 
 to take any further objections to the sufficiencv of the abstract ; he can only 
 require the vendors to verify the title shewn on tne abstract. Bank of Montreal v. 
 Fox. 6 Pr. R. 217. 
 
 By taking a vesting order or aconvevance, the purchaser waives all objections to 
 title. He also takes upon himself the responsibility of obtaining possession, 
 Bull V. Harper, 6 Pr. R. 36. 
 
 Where, after a sale under decree, an abstract had not been demanded and no 
 steps had been taken by the purchaser or his representatives for twenty- three 
 months after the confirmation of the report, a reference as to title was refused and 
 the purchaser was held to have accepted the title, Ontario Bank v. Sirr, 6 Pr. R. 
 216. 
 
 A purchaser at a sale under decree, who goes into possession of the land pur- 
 chased, even though he Jot: : so by leave of the parties to the suit, is deemed to 
 have accepted the title, utik t s the sanction of the Court has been obtained to his 
 entering into possession without waiving his right to call for a good title, Patterson 
 V. Robb, 6 Pr. R. 114, 
 
 But acceptance of title by the act of the purchaser in going into possession, was 
 held to be waived by the vendor's solicitors delivering an abstract of title when 
 demanded and answering some of the requisitions, Aldwell v. Aldwell, 6 Pr. R. 
 183. 
 
 An abstract of title and title deeds having been sent to a purchaser in Novem- 
 ber, 1869, at his own request, for the purposes of examination and advice, intimated 
 no objection to the title, and in correspondence with the vendor's solicitors im- 
 plied that he was content with the title, out in June, 1870, he claimed the richt of 
 mvestigating it afresh : — Held th%t by the lapse of time and the letters which he had 
 written, he had impliedly accepted the title, Rae v. Geddes, 18 Gr. 217. 
 
 For a discussion of what will be a sufficient taking of possession of a purchased 
 house under the contract, see People's Loan Co. v. Bacon, 27 Gr. 294. 
 
 Interest on purchase money runs from the date when after acceptance of the 
 title, the purchaser could have safely taken possession, and a difficulty respecting 
 the conveyance may justify a purchaser in not taking possession, Rae v. Geddes, 3 
 Ch. Ch. R. 404. 
 
 Conveyance. — After the title has been accepted and full purchase money paid 
 into Court, the purchaser is entitled to a conveyance or a vesting order. 
 
 Before accepting title by means of a vesting order, purchaser has a right to call 
 for evidence that all persons whose interests were intended to be disposed of were 
 alive at the time of sale, Ulatei v. Fisken, 1 Ch. Ch. R. 1. 
 
 Where owing to there being infants interested it was necessary to have the con 
 veyance settled by the Master, the purchaser was allowed his costs of doing so, re 
 McMorris, 3 Ch. Ch. R. 430. 
 
 If a person wishes to appeal from the Master's settling of a conveyance, the 
 proper course is for the Master to report, and then the appeal lies in the usual way, 
 Rae V. Geddes, 3 Ch. Ch. R. 408. 
 
 A mortgagor or his heirs are not proper parties to a conveyance of the estate to 
 a purchaser at a sale under the decree of the Court, Ross v. Steele, 1 Ch. Ch. R. 94. 
 
MORTOAOB SUITS. 
 
 [2^7] 
 
 Where pUintiff, who wm mortgagee in fee of landi, lold under a decree, had 
 become purchaser thereof, a vesting order was refused in his favour, Bowen v. Fox, 
 1 Ch. Ch. R. 387. 
 
 Usual practice in such a case is to issue an order declaring plaintiff entitled to 
 the lands absolutely free from any equity of redemption on part of those entitled 
 to it. When the mortgagee purchases according to the doctrine of the Common 
 Law the legal title is alreaily in him, and the sale confirms him in the posses- 
 sion of the property, Jones on Mortgage s, s. 1660. 
 
 Under the 6th clause of the standing conditions of sale, the purchaser makes 
 a sufficient tender of the conveyance for execution b^ delivering it to the vendor's 
 solicitor ; and it is the duty of the vendor to piocure its execution by all necesnary 
 parties. Until oonvey:vnce is completed and delivered to the purchaser, he may 
 properly resist pa3rment out of Court of any part of his purchase money, Weiss v. 
 Crofts, 6 Pr. R. 161. 
 
 Where any of the parties to the suit refuse to execute a conveyance to which 
 they have been properly made parties, the purchaser may apply by notice of motion 
 that thev may be ordered to execute the same within a limited time. The order 
 made should be served on the party personally, in the usual way and obedience 
 thereto will be enforced by committing the party to gaol, in accordance with the 
 usual practice of the Court, Daniel's I ractice, 1173 ; Westacott v. Cockerline, 2 
 Ch. Ch. R. 442. 
 
 Poiseition, — Under the standing conditions of sale, a purchaser is not entitled 
 to poNsession until he has paid the full amount of his purchase money into Court, 
 Bank of Montreal v. Fox, 6 Pr. R. 2L7. 
 
 If possession then Mrithheld, it is a subject for compensation on application in 
 Chambers, Thomas v. Buxton, L. R. 8 £q. 120 ; and see G. O. Chy. No. 389. 
 
 After sale under decree, an order for delivery of possession, will not, as a gen- 
 eral rule, be made against a person not a party to the suit ; and quaere, if there be 
 any jurisdiction over strangers, except in the plain case ofparties taking possession, 
 pendente lite, without any pretence of paramount title, Trust & Loan v. Start, 6 
 Pr. R. 90. 
 
 Order 404, as to an order being obtained for possession, refers only to mortgage 
 cases, Mavety v. Montgomery, 1 Ch. Ch. R. 21 ; Chisholm t>. Allen, 2 Ch. Ch. R. 
 411. 
 
 An application for an order for possession cannot be made the means of trying 
 the right to possession between a landlord and his tenant or a trespasser, Scott v. 
 Black, 3 Ch. Ch. R. 323. 
 
 Court will not make an order against tenants of mortgagor or owner of equity of 
 redemption, although such tenancy began after the mortgage was made. Bank of 
 Montreal v. Ketchum, 1 Ch. Ch. R. 117. 
 
 The order is made only after notice, and it must be shewn on the application 
 that the mortgagor is in possession, Buckley v. Ouellette, 2 Ch. Ch. R. 439 ; Hod- 
 kinson v. French, 1 Ch. Ch. R. 201 ; McKenzie v. Wiggins, 2 Ch. Ch. R. 391. 
 
 On moving to commit for not obeying such an order, it must be shewn that 
 possession was demanded, Nevieux v. Labadie, 1 Ch. Ch. R. 13 ; but see Hodkin- 
 son V. French, 1 Ch. Ch. R. 201. 
 
 A purchaser by taking a conve]rance or a vesting order, takes upon himself the 
 responsibility of obtaining possession and if evicted by a title to which his cov- 
 enants do not extend, has no right to compensation on that account. Bull v. Harper, 
 6Pr. R. 36. 
 
 Misdescription in the advertisement is a ground for compensation even after con- 
 veyance. 
 
 Where conditions of sale stated that taxes .wS&ld be paid by the vendor, and the 
 purchaser, relying on this, took a vesting order without first seeing that the taxes 
 were paid, a motion for compensation in respect of taxes in arrear at time of sale 
 was refused with costs, Kincaid v. Kincaid, 6 Pr. R. 93 ; re Buck, 6 Pr. R. 98. 
 
 But where after accepting a vesting order a purchaser ascertained that land sold 
 had been previously sold for taxes, he was held entitled to payment out of the money 
 in Court of the amount required to redeem the land, with his costs of the motion, 
 TurriU v. TurriU, 7 Pr. R. 142. 
 
[238] 
 
 CHANCERY ORDERS. 
 
 Where a bill was filed by a second mortgagee, the first mortgagee not being a 
 party, and the purchaser at the sale paid his money into Court and took out a vest- 
 ing order, but it appeared that he thought he was purchasing free from encumbran- 
 ces, and was ignorant of the prior mortgage— he was held entitled to an order for 
 the payment out of Court of the amount due thereon, Fleming z: McDougall, 8 Pr. 
 B. 200. 
 
 ADMINISTRATION SUITS. 
 
 'i!! 
 
 m 
 
 467. Any person claiming to be a creditor, or a specific, 
 pecuniary, or residuary legatee, or the next of kin, or one of 
 the next of kin, or the heir, or a devisee interested under the will 
 of a deceased person, may apply to the Court upon motion, 
 without bill filed, or any other preliminary proceeding, for an 
 order for the administration of the estate, real or personal, of 
 such deceased person. (3rd June, 1853 ; Ord. 15, s. 1.) 
 
 The Chancery Orders 467 to 487, and 638 to 650, apply to all the Divisions of 
 the High Court of Justice, Judicature Act, O. I. r. 3. 
 
 Under Ord. 638 (10th Jan. 1879) any adult p^erson entitled to apply under this 
 Ord. 467 or under Ord. 471, for a administration order may apply to the Master 
 in the county town of the county (other than the County of York) where the 
 deceased person whose estate it is desired to administer, resided at the time of his 
 death ; and such Master may, on fourteen days' notice being given to the person 
 or persons entitled to notice of such an application, make an order for the adminis- 
 tration of, and proceed to administer, sucn estate in the least expensive and most 
 expeditious manner. In the County of York the application is still made in 
 Chambers, and as to proceedings in that County the practice before the O^'ders of 
 1879 is still in force. 
 
 The following rules as to parties given in Ord. 68, apply to administration suits : 
 Rule 1. A residuary legatee, or next of kin may have a decree for the administra- 
 tion of the personal estate of a deceased person, without serving the remaining 
 residuary legatees or next of kin. Rule 2. A legatee interested in a legacy charged 
 u)>on real estate ; or a person interested in the proceeds of real estate directed to 
 be sold, may have a decree for the administration of the estate of a deceased 
 person, without serving any other legatee or person interested in the proceeds of 
 the estate. Rule 3. A residuary devisee or heir may have the like decree, on their 
 serving any co-residuary devisee or co-heir. Rule 6. An executor, administrator 
 or trustee, may obtain a decree against any one legatee, next of kin, or cutui que 
 trutt, for the administration of the estate, or the execution of th^ trusts. 
 
 As to serving notice of the decree in such cases, see notes to Ord. 244. 
 
 The proceedings under this order are intended for simple cases only, Acaster v. 
 Anderson, 19 Beav. 161 ; Rump v. Greenhill, 20 Beav. 512 ; and see Nudel ^. Elliott, 
 1 Ch. Ch. R. 326 ; Eberts v. Eberts, 25 Gr. 565 ; Heywood v. Sievwright, 8 Pr. R. 
 79 ; and where executors are charged with misconduct, a bill must be filed, re 
 Babcock, 8 Gr. 409 ; but where a plaintiff, without sufficient cause, files a bill for 
 administration instead of applying for an order on notice of motion, he is not en- 
 titled to the extra costs thereby occasioned, S vereign v. Sovereign, 15 Gr. 659 ; 
 Eberts v. Eberts, supra. 
 
 Where there is more than one personal representive all must be notified, not- 
 withstanding that one of them be resident out of the jurisdiction, Freeborn v. 
 Carroll, 6 Pr. R. 188. A decree for administration cannot be made against an ex- 
 ecutor de son tort where there is no legal personal representative before the Court, 
 Rowsell V. Morris, L. R. 17 Eq. 20 ; Outram v. Wyckhoff, 6 Pr. R. 150 ; notice of 
 motion for an administration order having been served on the widow of the intes- 
 tate as administratrix, the application was refused, there bein? no evidence pro- 
 duced that letters of administration had been granted to her, 'x< owler v. Marshall, 
 1 Ch. Ch. R. 29 ; but where the fact of the defendant being administrator is not 
 disputed, and the plaintiff has filed an afE davit that he is administrator, it is not 
 necessary to give further evidence of the fact, or to produce the letters of admistra- 
 
ADMINISTRATION SUITS. 
 
 [239] 
 
 tion, or copy thereof, re Bell, Bell v. Bell, 3 Ch. Ch. R. 397. A creditor making 
 application must be a creditor of the deceased person and not merely a creditor of 
 his executor or administrator, thus an application by a person who had made 
 advances to the executor was refused, Campbell v. Bell, 16 Gr. 115 ; Farh^l v. 
 Farhall, L. R. 7 Ch. App. 123 ; re Pettee, McKinley v. Beadle, 6 Pr. R. 157. 
 
 A legatee, or next of kin, cannot apply for administration until the expiration 
 of a year from the death of the person whose estate is sought to be administered. 
 Slater v. Slater, 3 Ch. Ch. R. 1 ; Vivian v. Westbrooke, 19 Gr, 461. 
 
 When the estate in question is small, a suit for administration should not be 
 brought until all reasonable means of avoiding the suit have been exhausted ; and 
 where a next friend of an infant brought a suit for administration, without having 
 taken steps to avoid litigation, and the suit afterwards appeared to have been 
 unnecessary, he was ordered to pay the costs, Hutchinson v. Sargent, 17 Gr. 8 ; 
 McAndrew v. Lafiamme, 19 Gr. 193. 
 
 Where an executor, in answer to an application for administration, swore that 
 the personal estate had not exceeded 850, the Court, before it would make an 
 order for administration, required the applicant to file an affidavit stating that he 
 had reason to believe and did believe that the result of the proceedings would shew 
 a substantial balance of personal estate to be divided among the legatees, Foster v. 
 Foster, 19 Gr. 463 ; administration was refused on the application of a legatee whose 
 claim, including interest on his legacy, only amounted to $28, notwithstanding that 
 it was alleged that other legacies remained unpaid which amounted to a considerable 
 amount, Reynolds v. Coppin, 19 Gr. 627. 
 
 And where a creditor brings an administration suit after being informed that 
 there are no assets applicable to the payment of his claim, if the information appear 
 by the result to be substantially correct, he may have to pay the costs of the suit. 
 The City Bank v. Scatcherd, 18 Gr. 185 ; where the application is made by a creditor 
 whose claim is disputed, he must establish his debt oy proper evidence ; his own 
 uncorroborated affidavit is insufficient, Vivian v. Westbrooke, 19 Gr. 461. 
 
 After notice of motion served, a commission may be obtained for the examination 
 of witnesses with a view of establishing the fact that the party applying for the 
 order is one of the next of kin of the intestate, Farrell v. Cruiksbank, 1 Ch. Ch. R. 
 12. 
 
 After an order made upon summons the Court will stay an action at law 
 against the executor, as after a decree obtained upon a bill, Gardiner v. Garret, 20 
 Beav. 469. 
 
 A motitm having been made, upon notice, for an administration order, the 
 order not having been drawn up and no steps having been taken for four years, an 
 application in Chambers for a direction to the Registrar to draw up the order, was 
 refused, and new notice required to be served, re Forrester, 1 Ch. Ch. R. 29. 
 
 Executors having objected to pay into Court a sum of money, on the ground 
 that it had been paid to their solicitor for watching and protecting the interest of 
 the estate upon claims of creditors brought into the Master's office : — Held that 
 they were entitled to do so ; as it is the duty of the executors to protect and look 
 after the interest of the estate uiwn these inquiries, and this they do, not strictly 
 as accounting parties, but in virtue of their representative character, re Babcock, 
 8 Gr. 409. 
 
 Where several suits are instituted for adminstration of a testator's estate, and 
 a question arises as to their amalgamation, and the conduct of the cause, the pre- 
 ference will be given to a residuary legatee, or other person who has an interest in 
 the residue, in preference to a creditor. Penny v. Francis, Woodhatch v. Francis, 
 7 Jur. N. S. 248. 
 
 \ 
 
 468, The notice of motion is to be in the form or to the 
 effect set forth in schedule U hereunder written, and must be 
 served upon the executor or administrator. (3rd June, 1853 ; 
 Ord. 15, a. 1.) 
 
J ^1 
 
 r, 
 
 imm 
 mm 
 
 [240] 
 
 CHANCERY ORDERS. 
 
 The Schedule U ia m follows :— 
 
 In the matter of the estate of E. F. , late of the Township of Vaughan, in the 
 
 County of York, deceased. 
 A. B. against C. D. 
 To G. D., Executor of E. F., deceased. 
 
 Take notice that A. B,, of the City of Toronto, in the County of York, Esquire, 
 {or other proper dctcryption of the party), who claims to be a creditor upon the estate 
 of the above named E. F., will apply to the Court of Chancery, in Chambers, at 
 Osgoode Hall, in the City of Toronto, on the day of , at the 
 
 hour of .for an order for the administration of the estate, real and per* 
 
 Bonal, of the said £. F., b^ the Court of Chancery ; and upon such application 
 will be read the affidavits of (ttcUe the materialt upon which the application ia 
 Jouvded) this day filed. 
 
 If you do not attend either in person or by your solicitor at the time and place 
 above mentioned, such order will be made in your absence as may seem just and 
 expedient. 
 Dated, etc. 
 
 G. H., 
 Of the City of Toronto, Solicitor for the above named A. B. 
 
 This notice of motion is to be served upon all proper parties at least fourteer 
 days before the day named fur hearing the application, Ord. 552, 638. 
 
 For form of notice under the Judicature Act, see Forms, No. 12. 
 
 It is no bar to the appointment of a guardian ad litem to an infant defendant, 
 in an administration suit, that the application for the guardian is made before the 
 return of the notice of motion for the administration order, Barry v. Brazil, 1 Ch. 
 Ch. R. 237. 
 
 Next of kin are not necessary parties to an administration suit, but should be 
 served with an office-copy of the decree, English v. EngHsh, 12 Gr. 441; Rodgers 
 V. Rodgers, 13 Gr. 457. 
 
 469. Upon proof by affidavit of the due service of the 
 notice of motion, or on the appearance in person, or by his 
 solicitor or counsel, of the executor or administrator, and upon 
 proof by affidavit of such other matter, if any, as the Court 
 requires, the Court may make the usual order for the admin- 
 istration of the estate of the deceased, with such variations, if 
 any, as the circumstances of the case require ; and the order so 
 made is to have the force and effect of a decree to the Jike effect 
 made on the hearing of a cause between the same parties. (3rd 
 June,1853 ; Ord. 15, s. 1.) 
 
 Some evidence of the applicants having a right to call for administration of the 
 estate must be furnished, re Clark, 2 Ch. Ch. R. 67 ; and see notes to Ord. 467. 
 
 The facts that the estate is small, that no imputation is made against the exe- 
 cutors, and that it is unadvisablo to incur legal expenses, are no answer to a motion 
 for administration by a legatee against the executors, re Falconer, 1 Ch. Ch. R. 
 273. Where in an administration suit the whole of the real and personal estate of 
 the intestate was insufficient to pay the creditors, the heir at law and administra- 
 trix were allowed their costs as oetween solicitor and client, Tardrew v. Howell, 
 Parry v. Howell, 9 W. R. 296. 
 
 A party appealing from a decree in an administration suit successfully, was 
 allowed the costs of the appeal out of the estate, Menzies v. Ridley, 2 Gr. 544. 
 
 Costs ought to be given out of the estate, for those proceedings only which are 
 commenced for the benefit of the estate, or which have in their result been of benefit, 
 Bartlett v. Wood, 9 W. R. 817 ; see also as to costs, Maddison v. Chapman, \ 3. k 
 H. 470 ; Barnwell v. Iremonger, 1 Dr. & Sm. 255 ; Sullivan v. Bevan, 20 Beav. 
 399 ; Norris v. Bell, 9 Gr. 23 ; Millar v. McNaughton, 11 Gr. 308 ; Blain v. Terry- 
 berry, 12 Gr. 221. 
 
ADMINISTRATION SUITS. 
 
 [241] 
 
 Vaughui, in the 
 
 ;y of York, Esquire, 
 litor upon the estate 
 ry, in Chambers, at 
 I , at the 
 
 istate, real and per- 
 m such application 
 !h the api^ication it 
 
 the time and place 
 may seem just and 
 
 G. H., 
 
 above named A. B. 
 
 bies at least fourteer 
 )2,638. 
 
 b. 12. 
 
 m infant defendant, 
 n is made before the 
 arry v. Brazil, 1 Gh. 
 
 1 suit, but should be 
 12 6r. 441; Bodgers 
 
 service of the 
 erson, or by his 
 rater, and upon 
 y, as the Court 
 for the admin- 
 ch variations, if 
 ind the order so 
 the J ike effect 
 me parties. (3rd 
 
 dministration of the 
 notes to Ord. 467. 
 
 lade against the exe- 
 9 answer to amotion 
 Jconer, 1 Ch. Ch. R. 
 nd personal estate of 
 law and administra- 
 Tardrew v. Howell, 
 
 ait successfully, was 
 idley, 2 Gr. 514. 
 dings only which are 
 result been of benefit, 
 V. Chapman, 1 J. & 
 1 V. Bevan, 20 Beav. 
 308 ; Blain v. Terry- 
 
 470. The Court is to give any special directions touching 
 the carriage or execution of the order, which it deems ex- 
 pedient ; and in case of applications for any such order by two 
 or more persons, or classes of persons, the Court may grant 
 the same to such one or more of the claimants as it thinks fit ; 
 and the carriage of the order may be subsequently given to 
 any party interested, and upon such terms as the Court may 
 direct. (3rd June, 1854 ; Ord. 15, s. 1.) 
 
 Under this order the Master has power to give any special directions he may 
 think proper respecting the carriage of the order, where there are conflictini;; claims, 
 and also to .transfer its carriage from one party to another, if occasion should re- 
 quire. The rule being to give the conduct oi the proceedings, ceteris paribus, to the 
 party most interested in prosecuting them properly and economically, Perrin v. 
 Perrin, 3 Ch. Ch. R.- 452 ; and see re Adams, Adams v. Muirhead, 6 P. R. 283, 
 and see notes to Ord. 212. 
 
 Although proceedings in the Master's office may, under the General Order, be 
 taken ex parte against a defendant who has allowed a bill to be taken pro confesso, 
 that mode of proceeding is irregular under an administration order without bill, 
 r^Pattison, 12 Gr. 47. 
 
 471. An order for the administration of the estate of a 
 deceased person may be obtained by his executor or adminis- 
 trator, and all the provisions of the foregoing Orders are to 
 extend to applications by an executor or administrator. (3rd 
 June, 1853 ; Ord. 16. s. 2. 
 
 Where the personal representative makes application for the administration of 
 the personal estate, the application may be granted ex parte, per Esten, V. C. , ^ 
 Dunlevy, see Order Book 11, fo. 778; Be Ette. 6 P. R. 159 ; Be Bromley, V. 0. 
 Blake 28th Jan. 1878. 
 
 There appears to be some conflict of authority as to whether a deficiency of 
 assets for the payment of debts, is a sufficient ground for the personal representa- 
 tive to apply to the Court for administrat'on, see Swetnam v. Swetnam, 6 P. R. 
 149, Be Ette, 6 P. R. 159, Be Shipman, Wallace v. Shipman, 24 Gr. 177 ; Marsh v. 
 Marsh, 7 P. R. 129 ; re Jack, Jack v. Jack, 13 W. C. L. J. 358 ; re Bromley supra. 
 In the latter case it appeared that the assets were insufficient, that the applicant 
 had been sued bv one creditor in the Division Court, and that another creditor had 
 written urging tne applicant to obtain an administration order, and the application 
 was granted. But it seems clear that an executor has no right to institute a suit 
 for administration merely to obtain an indemnity by passing his accounts. White 
 V. Cummins, 3 Gr. 602; Cole v. Glover, 16 Gr. 392; Barry v. Barry, 19 Gr. 458; 
 and he may be refused his costs of a suit unnecessarily brought, Graham v. Robson, 
 
 17 Gr. 318; or he may be ordered to pay the costs of a suit which turns out to be 
 improperly instituted, McGiU v. Courtice, 17 Gr. 271 ; Sullivan v. Sullivan, 16 Gr. 
 94; and wnere the guardian ad litem of an infant defendant had made no objection 
 to the unnecessary proceedings, no costs were given either to the executors or the 
 guardian of such proceedings. Springer v. Clark, 15 Gr. 664. So also executors 
 nave beer, ulimtiiid with so much of the costs of a reference as were incurred in 
 establishizig charges against them which they disputed, Stewart v. Fletcher, 
 
 18 Gr. 21. 
 
 472. No accounts or inquiries in respect of the real estate 
 are to be directed, unless notice of the application has been 
 given to the heirs and devisees interested therein, or one or 
 more of them. (20th Dec. 1865 ; Ord. 13.) 
 
*l 
 
 m 'vlliti'' 1 
 
 11 
 
 s' ih 
 
 r 1 ! 
 
 ■ ■ " ( 
 
 ■V:T 
 
 [242] 
 
 CHANCEBT ORDEBS. 
 
 ■ 
 
 . 
 
 i 
 
 i 
 
 M 
 
 
 p. ;■ 
 
 i 
 
 1 ! ■ ' 
 
 \ 4 
 
 •5( 
 
 li' 
 
 ii 
 
 'i 
 
 473. After inquiries directed in respect of the personal 
 estate, the Court may, in a proper case, after notice given to 
 those interested in the real estate, or to one or more of them, 
 make a supplemental order in respect of the real estate, upon 
 such terms as the Court sees fit. (20th Dec. 1865 ; Ord. 13.) 
 
 474. In taking an account of a deceased's personal estate 
 under an order of reference, the Master is to inquire and stato 
 to the Court what, if any, of the deceased's personal estate is 
 outstanding or undisposed of; and is also to compute interest 
 on the deceaseds debts from the date of the decree, and on 
 legacies from the end of one year after the deceased's death, 
 unless any other time of payment is directed by the will. (3rd 
 June, 1853 ; Ord. 42, s. 14.) 
 
 475. Every advertisement for creditors affecting the estate 
 of a deceased person, which is issued pursuant to an order, is 
 to direct every creditor, by a time to be thereby limited, to 
 send to such other party as the Master directs, or to his soli- 
 citor, to be named and described in the advertisement, the 
 name and address of such creditor, and the full particulars 
 of his claim, and a statement of his account, and the nature of 
 the security (if any) held by him ; and such advertisement is 
 to be in the form set out in schedule V, Form No.l, with such 
 variations as the circumstances of the case require ; and at the 
 directing such advertisement, a time is to be fixed for adjud- 
 icating on the claims. (20th Dec. 1865 ; Ord. 22.) 
 
 The advertisement for creditors is as follows : — 
 
 Pursuant to a decree \or an order] of the Court of Chancery, made in [the 
 matter of the estate of A. B., and in] a cause, S. against P. [short title], the credi- 
 tors of A. 6., late of , in the county of , who died in or about the month 
 of » 18 , are on or before the day of ,18 , to send by post, prepaid 
 to E. F., of , the solicitor of the defendant C. D., the executor [or administra- 
 tor] of the deceased [or as may he directed], their Christian and surnames, addresses 
 and description, the full particulars of their claims, a statement of their accounts, 
 and the nature of the securities (if any) held by them ; orin default thereof, they 
 will be peremptorily excluded from the benefit of the said decree [or order]. Every 
 creditor holding any security is to produce the same before me, at i^y Chambers, 
 at, etc., on the day of , 18 > at o'clock in the noon, br' ig thr 
 time appointed for adjudication on the claims. 
 
 Dated this day of , 18 . G. H master. 
 
 Where an executor or administrator has advertised for creditors unuer R. S. 0., 
 c. 107, B. 34, no further advertisement need be issued in an administration suit, 
 Cuthbert v. Wharmby, Seton (4th ed.), 805, 829 ; W. N. (1869) 12. 
 
 As to the duty of the executor or administrator with reference to claims sent in 
 pursuant to such advertisement, see Ord. 479, 480. 
 
 476. No such creditor need make an affidavit or attend in 
 support of his claim (except to produce his security, if any,) 
 unless he is served with a notice requesting him so to do, 
 as hereinafter provided. (20th Dec. 1865 ; Ord. 23.) 
 
ADMINISTRATION SUITS, 
 
 [243] 
 
 of the personal 
 notice given to 
 [• more of them, 
 real estate, upon 
 1865 ; Ord. 13.) 
 
 personal estate 
 iquire and stato 
 irsonal estate is 
 ompute interest 
 
 decree, and on 
 leceased's death, 
 by the will. {3rd 
 
 iecting the estate 
 nt to an order, is 
 jreby limited, to 
 bs, or to his soli- 
 vertisement, the 
 
 full particulars 
 i,nd the nature of 
 advertisement is 
 
 No.'l, with such 
 [uire ; and at the 
 
 fixed for adjud- 
 .22.) 
 
 lancery, made in [the 
 . [short title], the credi- 
 1 in or about the month 
 ) send by post, prepaid 
 xecutor [or administra- 
 nd surnames, addresses 
 nent of their accounts, 
 1 default thereof, they 
 ecree [or order]. Every 
 me, at my Chambers, 
 ;he noon, bf' ig thr 
 
 G. H Loster. 
 reditors tinuerR. S. 0., 
 in administration suit, 
 169) 12. 
 erence to claims sent in 
 
 iavit or attend in 
 security, if any,) 
 ng him so to do, 
 )rd. 23.) 
 
 477. Every such creditor is to produce before the Master, 
 the security (if any) held by him, at such time as is specified 
 in the advertisement for that purpose, being the time ap- 
 pointed for adjudicating on the claims ; and every creditor, if 
 required by notice in writing, to be given by the executor or 
 administrator of the deceased, or by such other party as the 
 Master directs, in the form set forth in schedule V, Form No. 2, 
 is to produce all other deeds and documents necessary to sub- 
 stantiate his claim before the Master, at such time as is speci- 
 fied in the notice. (20th Dec 1865 ; Ord. 24.) 
 
 The following is the form of notice referred to : — 
 
 (Short TUle). ' 
 
 You are hereby required to produce, in support of the claim sent in by yon, 
 against the estate of A. B., deceased [describe any documents required], before me at 
 
 , 18 , at o'clock in 
 
 my Chambers, at, etc., on the 
 the noun. 
 
 Dated this 
 
 To Mr. S. T. 
 
 day of 
 
 day of 
 
 18 
 
 G. B., of, etc.. Solicitor for the plain<ii£F, 
 [or defendant, or at may he\. 
 
 478. In case a creditor neglects or refuses to comply with 
 the next preceding Order, he is not to be allowed any costs of 
 proving his claim, unless the Master otherwise directs. (20th 
 Dec. 1865; Ord. 25.) 
 
 479. The executor or administrator of the decea^^d, or 
 such other party as the Master directs, is to examine the claims 
 sent in pursuant to the advertisement, and is to ascertain, as 
 far as he is able, to which of such claims the estate of the 
 deceased is justly liable. (20th Dec. 1865 ; Ord 26.) 
 
 480. The executor or administrator, or one of the execu- 
 tors or administrators, or such other party either alone or 
 jointly with his solicitor, or other competent person, or other- 
 wise, as the Master directs, is, at least seven clear days before 
 the day appointed for adjudication, to tile an affidavit which 
 may be in the form No. 3, in schedule V, verifying a list of 
 the claims, the particulars of which have been sent in pur- 
 suant to the advertisement, and stating to "vhich of such 
 claims, or parts thereof, respectively, the estate of the deceased 
 is, in the opinion of the deponent, justly liable, and his belief 
 that such claims, or parts thereof respectively, are justly due, 
 and proper to be allowed, and the reasons for such belief. 
 (20th Dec. 1865 ; Ord. 26.) 
 
[244] 
 
 CHANCERY ORDERS. 
 
 The form of affidavit given by the Court is as follows : — 
 
 In Chanokbt. 
 
 (TitU!) 
 
 We, 0. D., of etc., the above named plaintiff [or defendant, or cu may be], the 
 executors [or administrators], of A. B., late of , in the County of 
 
 xoceased, and E. F., of, etc., solicitor, severally make oath, and say as follows : — 
 
 I, the said E. ¥., [solicitor] for myself, say as follows : 
 
 1. I have, in the paptir writing now produced and shewn to me, and marked A, 
 ■et toT-th a list of all claims the particulars of which have been sent in to me by 
 perse u" 'claiming to be creditors of the said A. B., deceased, pursuant to the ad- 
 
 ortii . . ."i issued in that behalf, dated day of , 18 . 
 
 And I, tlie baid C. D., for myself, say as follows : 
 
 2. I have examined the several claims mentioned in the paper writing now 
 produced and shewn to me, and marked A, and I have compared the same with 
 the books, accounts, and documents of the said A. B., [or <u 7nay be, and atate any 
 other inquiries or investigations made], in order to ascertain, as far as I am able, to 
 which of such claims the estate of the said A. B., is justly liable. 
 
 3. From such examination [and state any other reasons], I am of opinion, and 
 verily believe, that the estate of the said A. B. is justly liable to the amounts set 
 forth in the sixth column of the lirst part of the said paper writing marked A ; 
 and to the best of my knowledge and belief, such ssveral amounts are justly due 
 from the estate of the said A. B., and proper to be allowed to the respective claim- 
 ants named in the said schedule. 
 
 » 
 
 4. I am of oi>iaion that the estate of the said A. B. is not justly liable to the 
 claims set forth in the second part of the said paper writing marked A, and that 
 the same ought not to be allowed without proof by the respective claimants, [or, I 
 am not able to state whether the estate of the said A. B., is justly liable to the 
 claims set forth in the second part of the said paper writing marked A, or whether 
 such claims, or any pwrts thereof, are proper to be allowed without further 
 evidence]. 
 
 Sworn, etc. 
 
 
 EXHIBIT REFERRED TO IN AFFIDAVIT. 
 
 (Short Title.) 
 
 List of claims, the particulars of which have been sent in to E. F., the solicitor 
 of the plaintiff [or defendant, or as may be], by persons claiming to bie creditors of 
 A. B., deceased, pursuant to the advertisement issued in that behalf, dated the 
 day of , 18 . 
 
 This paper writing, marked A, was produced and shewn to 
 , and is the same as is referred to in his affidavit, 
 • sworn before me this day of > 18 , 
 
 W. B., etc 
 
 First Par^— Claims proper to be allowed without further evidence. 
 
 i 
 
 Names of 
 Claimants. 
 
 Addresses 
 
 and 
 
 Descriptions. 
 
 Nature 
 
 of 
 Claim. 
 
 Amount 
 Claimed. 
 
 1 
 
 Amount 
 
 proper 
 
 to oe 
 
 allowed. 
 
 
 ■?c 
 
 
 
 $ c. 
 
 • c. 
 
■ a$ may be], the 
 
 mnty of 
 
 iy as follows : — 
 
 I, and marked A, 
 ent in to me bv 
 suant to the ad- 
 
 ler writing now 
 
 the same with 
 
 be, and state any 
 
 as I am able, to 
 
 of opinion, and 
 
 ;he amounts set 
 
 ing marked A ; 
 
 ml are justly due 
 
 respective ulaim- 
 
 bly liable to the 
 ked A, and that 
 claimants, [or, I 
 itly liable to the 
 ed A, or whether 
 without further 
 
 rem, etc 
 
 I. F., the solicitor 
 to be creditors of 
 behalf, dated the 
 
 ed and shewn to 
 ) in his affidavit, 
 8 , 
 
 W. B., etc. 
 evidence. 
 
 kt 
 d. 
 
 1 
 
 Amount 
 
 proper 
 
 to oe 
 
 allowed. 
 
 B. 
 
 $ 0. 
 
 ADMINISTRATION SUITS. 
 
 [245] 
 
 Second Part. — Claims which ought to be proved by the Claimants. 
 
 i 
 
 Names 
 
 of 
 
 Claimants. 
 
 Addresses 
 
 and 
 
 Descriptions. 
 
 Nature 
 
 of 
 Claim. 
 
 Amount 
 Claimed. 
 
 
 
 
 9 0. 
 
 481. In case the Master thinks fit so to direct, the making 
 of the affidavit referred to in the next preceding Order, is to 
 be postponed till after the day appointed for adjudication, and 
 is then to be subject to such directions as the Master may give. 
 (20th Dec. 1865 ; Ord. 27.) 
 
 483. At the time appointed for adjudicating upon the 
 claims, or at any adjournment thereof, the Master may allow 
 any of the claims, or any part thereof respectively, without proof 
 by the creditors, and may direct such investigation of all or 
 any of the claims not allowed, and require such further partic- 
 ulars, information, or evidence relating thereto, as he thinks 
 fit, and may, if he so thinks fit, require any creditor to attend 
 and prove his claim, or any part thereof ; and the adjudication 
 on such claims as are not then allowed is to be adjourned to a 
 time to be then fixed. (20th Dec. 1865 ; Ord. 28.) 
 
 And see as to proving claims, Order 224, and notes thereto. 
 
 483. Notice is to be given by the executor or administra- 
 tor, or such other party as the Master directs : (1.) To every 
 creditor whose claim, or any part thereof, has been allowed 
 without proof by the creditor, of such allowance, and such 
 notice may be in the form No. 4 in schedule V ; (2) And to every 
 such creditor as the Master directs to attend and prove his 
 claim, or such part thereof as is not allowed, by a time to be 
 named in such notice, (which may be in the form No. 5 in 
 schedule V,) not being less than seven days after such notice, 
 and to attend at a time to be therein named, being the time 
 to which the adjudication thereon has been adjourned ; and in 
 ease any creditor does not comply with such notice, his claim 
 or such part thereof as aforesaid, is to be disallowed, unless the 
 Master thinks fit to give further time. (20th Dec. 1865 ; 
 Ord. 29.) 
 
mmm 
 
 : ' .11 III' 
 
 fVl't 
 
 [246] 
 
 CHANCERY ORDERS. 
 
 The notice that a claim has been allowed in whole or in part is as follows :— 
 
 {Short Tifle.) 
 
 The claim sent in by you against the estate of A. B., deceased, has been allowed 
 at the sum of $ , [with interest thereon at 9 per cent, per annum, from 
 
 the day of i 18 > and $ for costs, or as the case nuiy be]. 
 
 If part only (Mowed, add. — If you claim to have a larger sum allowed, ^ou are 
 hereby required to prove such further claim, and you are to file [etc., at tn Form 
 No. 6.] 
 
 Dated this 
 
 To Mr. P. B. 
 
 day of , 18 . 
 
 G. B., of, etc., Solicitor for the plaintiff 
 [or defendant, or at may be.] 
 
 i^Hri 
 
 ■,*iii! 
 
 :|5lii'i 
 
 The notice that the creditor is required to prove his claim is the following : — 
 
 {Short Title.) 
 
 You are hereby required to prove the claim sent in by you against the estate of 
 A. B., deceased. You are to file such affidavit as you may be advised in support 
 of your claim, and give notice thereof to Master in Chancery [or at the cate 
 
 may be], on or before the day of , 18 ; and to attend personally or bv 
 
 Tour solicitor, at his Chambeis^ on the day of , 18 , at o'clock 
 
 in the noon, being the time appointed for adjudicating on the claim. 
 
 Dated this 
 
 To Mr. S. T. 
 
 day of , 18 . 
 
 G. R., of, etc.. Solicitor for the plaintiff. 
 [or defendant, or at may be}, 
 
 484. A creditor who has not before sent in particulars of 
 his claim pursuant to the advertisement, may do so seven clear 
 days previous to any day to which the adjudication is 
 adjourned. (20th Dec. 1865 ; Ord. 30.) 
 
 See Lashley v. Hogg, 11 Yes. 602 ; Angell v. Haddon, 1 Madd. 629, cited in 
 notes to Ord. 224. 
 
 485. After the time fixed by the advertisement, no claim 
 IS to be received (except as before provided in case of an 
 adjournment,) unless the Master thinks fit to give special leave 
 upon application, and then upon such terms and conditions as 
 to costs and otherwise as the Master directs. (20th Dec. 1865; 
 Ord. 31.) 
 
 486. Where an order is made for payment of money out 
 of Court to creditors, the party whrr e duty it is to prosecute 
 such order is to send to each creditor, or his solicitor (if any,) 
 a notice that the cheques may be obtained from the registrar; 
 and such notice may be in form No. 6 in schedule V, and such 
 party is, when required, to produce any papers necessary to 
 enable the creditors to receive their cheques. (20th Dec. 
 1865; Ord. 32.) 
 
as follows ; 
 
 has been allowed 
 per annum, from 
 )uiy he\. 
 
 allowed, ^ou are 
 [etc., at m Form 
 
 
 le following : — 
 
 ainst the estate of 
 ulvised in support 
 eery \pr a» the c<ue 
 i personally or by 
 , at o'clock 
 
 be claim. 
 
 particulars of 
 so seven clear 
 ijudication is 
 
 [add. 629, cited in 
 
 aent, no claim 
 in case of an 
 e special leave 
 conditions as 
 3tli Dec. 1865; 
 
 of money out 
 I to prosecute 
 icitor (if any,) 
 
 the registrar; 
 ie V, and such 
 
 necessary to 
 (20th Dec. 
 
 ADMINISTBATION SUITS. 
 
 [247] 
 
 ^e notice that cheques may be obtained is aa follows : — 
 
 (Shvrt TitU.) 
 
 The cheques for the amounts directed to be paid to the creditors of A. B., 
 deceased, by an order made in this [matter or] cause dated the day of • 18 , 
 may be received at the Accountant's OfBce, in Osgoode Hall, Toronto, on ana after 
 the day of , 18 
 
 To Mr. W. S. 
 
 etc. 
 
 G. B., of, etc., solicitor for the plaintiff, 
 [or, defendant, or as may he.\ 
 
 487. Every notice by these Orders, required to be given is, 
 unless the Master otherwise directs, to be deemed sufficiently 
 given and served if transmitted by post, prepaid, to the 
 creditor to be served, according to the address given by the 
 creditor in the claim sent in by him pursuant to the adver- 
 tisement, or, in case the creditor has employed a solicitor, to 
 such solicitor, according to the address given by him. (20th 
 Dec. 1865 ; Ord. 33.) 
 
 INFANTS AND PERSONS OF UNSOUND MIND. 
 
 [Orders 517 to 521, which provided for the appointment of guardians ad litem to 
 infant defendants by bill, seem not now in force, see Judic. Act, O. VI., rr. 4, 5.] 
 
 52!S. When infants, or persons of unsound mind not so 
 found by inquisition, are made parties to suits after decree, or 
 are served with notice of motion under Order 467, guardians 
 ad litem are to be appointed for them in like manner as they 
 are now appointed at any time after bill filed. (8th Nov. 1856.) 
 
 It is no bar to the appointment of a guardian ad litem to an infant defendant, 
 in an administration suit commenced by notice of motion, that the application for 
 a guardian is made before the return of the notice of motion for administration, 
 Barry v. Brazil, 1 Ch. Ch. E. 237. 
 
 See Judic. Act O. VI., rr. 4, 5 ; O. IX., rr. 1, 2. 
 
 523. Where a person required to be served with an office- 
 copy of a decree, pursuant to Order 60, is an infant, or a person 
 of unsound mind not so found by inquisition, the service is to 
 be effected upon such person or persons, and in such manner, 
 as the Master before whom the reference under the order is 
 being prosecuted directs. (1st April, 1867; Ord. 10.) 
 
 See as to Ord. 60 the notes to Ord. 244, ante. 
 See Judic. Act, O. VI,, rr. 4, 6 ; 0. IX,, rr. 1, 2. 
 
 584. At any time during the proceedings before a Master 
 under an order, the Master may, if he thinks fit, require a 
 guardian ad litem, to be appointed for any infant, or person of 
 unsound mind not so found by inquisition, who has been 
 served with an office-copy of the decree. (1st April, 1867; 
 Ord. 11.) 
 
 By Order 587 the Master may appoint the guardian ad litem. 
 
It:' I'l. 
 
 [248] 
 
 CHANCERY ORDERS. 
 
 i, lii 
 
 mi 
 
 525. Guardians ad litem for infants or persons of unsound 
 mind not so found by inquisition, who shall be served with an 
 office-copy of a decree, are to be appointed in like manner as 
 guardians ad litem to answer and defend, are appointed in 
 suits on bill filed. (1st April, 1867; Ord. 12.) 
 
 This order seems practically abrogated by Order 687, which gives the Master 
 power Jto appoint the guardian; and see Judic. Act, 0. VI., rr. 4, 6; O. IX.. 
 rr. 1, 2. 
 
 5!36. A person desirous of appointing a guardian for him 
 to defend a suit, may go before a Judge or Master with the 
 proposed guardian if he thinks fit to do so. But he must 
 satisfy the Judge or Master by affidavit that the proposed 
 guardian is a fit person and has no interest adverse to that of 
 the person of whom he is to be the guardian in the matter in 
 question ; and if the affidavit is not sufficient for this purpose, 
 tne Judge or Master may examine the proposed guardian, or 
 the person making the affidavit, viva voce, or require further 
 evidence to be adduced until he is satisfied of the propriety of 
 the appointment. (6th June, 1853 ; Ord. 2.) 
 
 521, A petition for the sale or other disposition of the real 
 estate of an infant, is to be intituled in the matter of the in- 
 fant. (3rd June, 1853 ; Ord. 37, s. 1.) 
 
 See notes to R. S. O., c. 40, ss. 76, et aeq. 
 
 5!38. The petition is to be presented, in the name of the 
 infant, by his guardian, or by a person applying by the same 
 petition to be appointed guardian, as hereinafter provided. 
 (3rd June. 1853 ; Ord. 37, s. 2.) 
 
 5!39. The petition is to state the nature and amount of the 
 personal property to which the infant is entitled — the necessity 
 of resorting to the real estate — its nature, value, and the 
 annual profits thereof. It must also state circumstances suffi- 
 cient to justify the sale or other disposition of the estate, and 
 the application of the proceeds in the manner proposed. The 
 prayer must state specifically the relief that is desired ; it must 
 designate the lands to be disposed of, and must propose a 
 scheme for that purpose, and for the appropriation of the pro- 
 ceeds. If an allowance for the maintenance is desired, it must 
 be so prayed, and a case must be stated to justify such an 
 order, and to regulate the amount. (3rd June, 1853 ; Ord. 37, 
 B. 3.) 
 
 530. The petition may pray for an appointment of a 
 guardian, as well as for the disposal of the infant's estate. In 
 
 Mi^ 
 
Jons of unsound 
 served with an 
 like manner as 
 e appointed in 
 
 ch gives the Maater 
 I., rr. 4,6; O. IX.. 
 
 ardian for him 
 aster with the 
 But he must 
 b the proposed 
 verse to that of 
 I the matter in 
 or this purpose, 
 ed guardian, or 
 require further 
 he propriety of 
 
 ition of the real 
 itter of the in- 
 
 e name of the 
 ? by the same 
 after provided. 
 
 amount of the 
 — the necessity 
 alue, and the 
 imstances suffi- 
 the estate, and 
 )roposed. The 
 Bsired; it must 
 mst propose a 
 ion of the pro- 
 lesired, it must 
 istify such an 
 1853; Ord. 37, 
 
 >intment of a 
 it's estate. In 
 
 ADMINISTRATION SUITS. [249] 
 
 that case a proper case must be made by the petition, and 
 established by the evidence, for the appointment of the person 
 proposed. ( rd June, 1853; Ord. 37, s. 3.) 
 
 531. Upon all petitions for the sale of the infant's estate, 
 the infant is to be produced before a Judge in Chambers, or 
 before a Master. (3rd June, 1853 ; Ord. 37, s. 5.) 
 
 532. Where the infant is above the age of seven years, he 
 is to be examined, apart, by the Judge or Master, upon the 
 matter of the petition, and as to his consent thereto, as required 
 by the Statute ; and his examfnation is to be stated to have 
 been taken under this Order, and is to be annexed to and filed 
 with the petition. Where the infant is under the age of seven 
 years, the fact is to be certified by the Judge or Master before 
 whom he is produced. (3rd June, 1853 ; Ord. 37, s. 6.) 
 
 By B. S. O., 0. 40, s. 78, a change has been made as to the age above which the 
 infant is to be examined as to the matter of the petition and his consent thereto. 
 The application now " shall not be made without the consent of the infant, if he 
 is of tne age of fourteen years or upwards." 
 
 ■533. The witnesses to verify the petition are also to be 
 produced before the Judge or Master, and are Co be examined 
 viva voce to the matter or the petition, and the depositions so 
 taken are to be stated to have been taken under this Order. 
 (3rd June, 1853; Ord. 37, s. 7.) 
 
 534. The Masters of the Court are authorized to examine 
 infants and witnesses under the preceding Order, without 
 special order or reference. (3rd June, 1853 ; Ord. 37, s. 8.) 
 
 635, Upon a petition so verified, the Court may either 
 grant the relief prayed at once, or make such order as to fur- 
 ther evidence, or otherwise, as the circumstances of the case 
 require. (3rd June, 1853 ; Ord. 37, s. 9.) 
 
 536. Where, by an order, a day is reserved for an infant 
 defendant to shew cause, it shall not be necessary to issue a 
 subpoena to shew cause against the order, but the plaintiff is 
 to serve the defendant after he attains twenty-one years of 
 age, with an ofiice-copy of the order, indorsed with a notice 
 in the form set forth in schedule W. 
 
 See notes to Order 434. 
 Schedule W is as follows :— 
 
 Take notice, that unless you within days after the service hereof upon 
 
 you, shew unto tiie Court of Chancery for Upper Canada good cause why the 
 
"wm 
 
 [250] 
 
 CHANCERY ORDERS. 
 
 v\\ M 
 
 ii 
 
 m 
 
 i ! 
 
 ^ I 
 
 ill 
 
 
 1 
 
 III 
 m 
 
 
 *;', 
 
 
 1 .:!!! 
 
 ill 
 
 
 III 
 it 
 
 
 
 
 m 
 
 
 Ud 
 
 
 
 .Vilil: 
 
 
 1 
 
 
 
 i 1 
 
 ■ .:.' 
 
 
 ^ 
 
 ijiui 
 
 within decree (or order) should not be binding upon you, you will be bound by the 
 ■aid (or order), and the same will stand and be absolute against you. 
 
 Dated, etc. 
 
 537. Committees of the persons and estates of lunatics, 
 idiots, and persons of unsound mind, and guardians, excepting 
 guardians ad litem,, are to be appointed in the same manner as 
 receivers, as nearly as circumstances will permit. (3rd June, 
 1853 ; Ord. 38, s. 2.) 
 
 For the mode of appointing a receiver, see Ord. 278 et aeq. 
 
 ORDERS OF 23rd FEBRUARY. ' 
 
 584. Where there is undue delay in prosecuting a refer- 
 ence in the office of the Master in Ordinary or any local Master, 
 he may issue his warrant to the solicitors or parties interested, 
 which may be transmitted by post, calling upon them to shew 
 cause why the reference should not be duly proceeded with. 
 In default of sufficient cause being shewn to excuse the delay, 
 or upon default being made in attending upon the return of the 
 warrant, the Master is to certify to the Court the circumstances 
 of the case ; and thereupon the reference in his office is to be 
 deemed closed, and is not to be resumed until further order. 
 
 585. In all cases under the forgoing Order, the Master may 
 order payment of fees and costs in such manner as he thinks fit. 
 
 586. Where an appointment fails by reason of the non-at- 
 tendance of aay party, and the Master does not think fit to 
 proceed ex parte, he may fix the amount of costs to be paid by 
 the absent party to the party attending upon the appoint- 
 ment. 
 
 587. The Master may, while proceedings are pending in 
 his office, and where he deems it advisable, appoint guardians 
 ad litem; and he may also dispense with service of the decree 
 upon the persons referred to in Order 60 ; and in such case he 
 is to state the reasons therefor in his report. 
 
 See notes to Ord. 244, ante. 
 
 588. Where an order directs the appointment of a receiver, 
 committee of the person and estate of a lunatic, idiot, or 
 person of unsound mind, or a guardian other than a guardian 
 lui litem, and does not regulate the matter herein provided 
 i 31 , the Master is to fix the time or times in each year when 
 the person appointed is to pass his accounts and pay his bal- 
 
ADMINISTRATION SUITS. 
 
 [261] 
 
 1 be bound by th« 
 
 ou. 
 
 9 of lunatics, 
 ms, excepting 
 me manner as 
 (3rd June, 
 
 uting a refer- 
 
 y local Master, 
 
 ies interested, 
 
 them to shew 
 
 :oceeded with. 
 
 use the delay, 
 
 3 return of the 
 
 circumstances 
 
 office is to be 
 
 irther order. 
 
 be Master may 
 s he thinks fit. 
 
 of the non-at- 
 
 ot think fit to 
 
 to be paid by 
 
 the appoint- 
 
 re pending in 
 )int guardians 
 3 of the decree 
 n such case he 
 
 i of a receiver, 
 atic, idiot, or 
 an a guardian 
 rein provided 
 ;h year when 
 pay his bal- 
 
 ances into Cci wi , anc' in default of compliance with such 
 direction, the person appointed may, on the passing of his 
 accounts, be disallowed any salaiy or compensation for his 
 services, and may be charged with interest upon his balances. 
 
 589. In administration suits reports are, as far as possible, 
 to be in the form given in the schedule hereto. 
 
 The form of report given is as follows : — 
 
 In Chanoxut. 
 
 Between A. B. and others, Plnintiffs, 
 and 
 C. D. and others, Defendants. 
 [Date.l 
 
 Pursuant to the order [or decree] herein made, dated the day of 
 
 1871, having caused an office-copy thereof to be served upon [give the name* 
 of persona served under Order 60. and alto the names of those upon whom service has 
 been dispensed with, and the reason for dispensing with service], I proceeded to dis- 
 pose of the matters referred to me, and tnereupon was attended by the solicitors 
 tor all parties interested [or at the case may be\. 
 
 [If the Master has appointed a guardian ad litem, for any of the parties, this 
 should be so stated, and the reason why such appointment was made.] 
 and I find as follows : — 
 
 1. The personal estate not specificallv bequeathed of the testator come to the 
 hands of the executors, and wherewith they are chargeable, amounts to the sum of 
 9 and they have paid, or are entitled to be allowed thereout, the sum of 
 $ leaving a balance due from them [or " to them," as the case may be,] of 
 $ on that account. 
 
 [If no personal estate, say : No personal estate has come to the hands of the 
 executors, nor are they chargeable with any.] 
 
 2. The creditors' claims sent in pursuant to my advertisement in that behalf 
 (published in issues of the newspaper called ), and which 
 have been allowed, are set forth in the first schedule hereto, and amounts alto- 
 gether to I 
 
 [If no creditors, say : No' creditor has sent in a claim pursuant to my adver- 
 tisement in that behalf, nor has any such claim been proved before me.] 
 
 8. The funeral expenses of the testator amounting to $ have been paid 
 
 by the executors and are allowed to them in the account of personal estate. 
 
 4. The legacies given by the testator are set forth in the second schedule hereto, 
 and with the interest therein mentioned, remain due to the persons named [o)' as 
 the case may be]. 
 
 5. The personal estate of the said testator outstanding or undisposed of is set 
 forth in the third schedule hereto. 
 
 [In this third schedule the personal estate specifically bequeathed should be 
 set forth separately from the other personalty outotanding or undisposed 
 of. If there is no specific bequest, it should be so stated in the body of 
 the report.] 
 
 6. The real estate which the said testator was seised of or entitled to, and the 
 encumbrances (if any) affecting the same, are set forth in the fourth schedule 
 hereto. 
 
 7. The rents and profits of the testator's real estate received by the said execu- 
 tors, or with which tney are chargeable, amount to 9 and they have paid, 
 or are entitled to be allowed thereout, the sum of $ leaving a balance due 
 from [or to] them of $ on that account. 
 
 [// no rents, etc., received, say : No rents and profits have come to the hands 
 of the said executors, nor are they chargeable with any. 
 
 8. I have allowed to the said executors the sum of $ as a compensation 
 for their personal services in the management of the said estate. 
 
 All of which, etc. 
 
I"! ■-! m 
 
 [252] 
 
 CHANCERY ORDERS. 
 
 m 
 
 %' 
 
 : f ''y 
 
 ORDERS OF 10th JANUARY, 1879. 
 
 638. Any adult person entitled to apply, under Orders 467 
 or 471, for an administration order may apply to the Master 
 in the County Town of the County (other than the County of 
 York) where the deceased person whose estate it is desired to 
 administer resided at the time of his death ; and such Master 
 may, on 14 days' notice being given to the pei"son or persons 
 entitled under the present practice to notice of such an appli- 
 cation, make an ordcx for the administration of, and proceed 
 to administer, such estate in the least expensive and most 
 expeditious manner. 
 
 This order is confined to applications made by adult persons, and so is more lim- 
 ited in its application than Order 467. Where an administration of an estate is 
 sought on behalf of an infant, or where the person whose estate is to be adminis- 
 tered died in the County of York, or in any County where there is no local Master 
 — the application must be made in Chambers, or, when necessary, upon bill filed 
 for that purpose. 
 
 As to the persons to be served and the mode of proceeding to obtain an ad- 
 ministration order, see notes to Ord. 467. 
 
 For form of order for administration to be made by a local Master, see Judic. 
 Act, Appendix of Forms, No. 171. 
 
 639. Such Master shall have full power to deal with both 
 the realty and personalty of the estate, the subject of admin- 
 istration, and shall dispose of the costs of the proceedings, and 
 shall finally wind up all matters connected with such estate, 
 without any further directions, and without any separate, 
 interim, or interlocutory reports, or orders, except where the 
 special circumstances of the case call therefor; and in so 
 doing he shall be guided by the practice heretofore had in the 
 administration of estates upon an application made in Cham- 
 bers for an administration order: Provided always, that all 
 moneys realized from the estate shall at once be paid into 
 Court, and that no moneys shall be distributed or paid out for 
 costs or otherwise, without an order of the Judge in Chambers 
 or the Court, and on the application for such order, the Judge 
 may review, auiend, or refer back to the Master his report or 
 order, or make such other order as he deems proper. 
 
 The object of this order is to do away with the necessity of a hearing on further 
 directions in administration suits ; the order to be made by the Master ought there- 
 fore to cover all those directions whJch, by the former practice, were usually made 
 on the hearing on further directions, except the order for payment of the fund out 
 of Court; e.g., the Master may properly order any balances' found in the hands of 
 accounting parties to be paid into Court, he may also properly direct a sale of the 
 land, the payment of the purchase money into Court, the settlement of conveyances 
 and the execution thereof by all proper parties, and he may also properly appoint 
 some person to execute such conveyances for infants or other persons not tui juris 
 who are incapable of executing the same themselves. The Master has aJso power 
 
ADMINISTRATION SUITS. 
 
 [253] 
 
 1879. 
 
 mder Orders 467 
 ly to the Master 
 m the County of 
 e it is desired to 
 and such Master 
 )ei'son or persons 
 )£ such an appli- 
 of , and proceed 
 ^nsive and most 
 
 ns, and so is more lim- 
 ;ration of an estate is 
 itate is to be adminis- 
 lere is no local Master 
 essary, upon bill filed 
 
 ling to obtain an ad- 
 
 cal Master, see Judic. 
 
 3 deal with both 
 iibject of admin- 
 proceedings, and 
 i^ith such estate, 
 it any separate, 
 xcept where the 
 sfor; and in so 
 iofore had in the 
 made in Cham- 
 always, that all 
 ice be paid into 
 i or paid out for 
 ige in Chambers 
 arder, the Judge 
 ber his report or 
 roper. 
 
 f a hearing on further 
 le Master ought there- 
 ;e, were usually made 
 rraent of the fund out 
 Pound in the hands of 
 -ly direct a sale of the 
 ement of conveyances 
 also properly apptoiut 
 persons not lui juris 
 laster has also power 
 
 to make any order or report which may be necessary for completely winding up the 
 estate or protecting the rights of the parties to the suit. The words "witnout 
 any separate or interlocutory reports, or orders, except so far as the special circum- 
 stances of the case may require," indicate that it is only unnecessary orders or 
 reports that are dispensed with, but that so far as such interlocutory reports or 
 orders may be essential to the winding up of the estate, the Master is to have the 
 power to make them. The drawing up and issuing of many orders may be avoided 
 Dy acting under Order 231. which provides that a party directed by the Master to 
 lying in any account, or do any other act, is to be held bound to do the same in 
 pursuance of the direction of the Master without any warrant or written direction 
 served for that purpose. The provisions of that order of course only apply when 
 the party attends the Master in person or by solicitor and has notice of the 
 direction. 
 
 The only order which the Master is precluded from making in suits for adminis- 
 tration, or partition, in which he has issued a decree, is that for the payment out 
 of the money in Court ; as to the distribution of the fund, it would seem to be in- 
 tended that the Master should state the amount of the commission and what he 
 finds would be a proper apportionment thereof among the different solicitors under 
 Order 643, and also the amounts he finds payable to creditors, and other benefi- 
 ciaries, respectively. 
 
 The order for payment is to be made by a Judge or the Court. Application for 
 this order is to be made in Chambers on a Monday (Ord. .590) : the application ia 
 to be made upon notice, and it would seem that all persons who, under the former 
 practice, would be .entitled to notice of a hearing on further directions, would be 
 entitled to notice of such an application. 
 
 Under the ordinary administration decree, it has been held that the Master may 
 take an account of timber cut with which a defendant is chargeable, Stewart v. 
 Fletcher, 18 Gr. 21 ; and may also without any special directions take evidence 
 and report the facts as to payments made by executors for the maintenance and 
 education of infant beneficiaries, Stewart v. Fletcher, 16 Gr. 235. The Master 
 would have similar powers under a decree issued by himself, he would also be 
 entitled to make all proper allowances to executors, administrators, and trustees, 
 by way of compensation for their services. 
 
 Where a legacy is given to executors as compensation for their trouble, they are 
 at liberty to daim a further sum under the statute if the legacy be an insufficient 
 remuneration, Denison v. Denison, 17 Gr. 307 ; see, however, Kennedy v. Pingle, 
 27 Gr. 305. Where a suit was brought by an executor unnecessarily the Court 
 refused to allow him any commission, Graham v. Robson, 17 Gr. 318. An executor, 
 not being a trustee of the realty, is not entitled to receive the rents thereof, and if 
 he do, he is a mere intermeddler and not entitled to any compensation in respect 
 of such rents, Dagg v. Dagg, 25 Gr. 542. 
 
 An order may, when necessary, be obtained under Ord. 640, combining with the 
 order for partition one for administration. 
 
 640. Any adult person who has heretofore been entitled to 
 a decree or order for the partition of an estate, may, on serv- 
 ing one or more of the persons entitled to a share of the estate 
 of which partition is sought, with a 14 days' notice of motion, 
 apply to the presiding Judge in Chambers, or to the Master 
 in the County (other than the County of York) wherein the 
 land sought to be affected by the proceeding lies, for an order 
 for the partition or sale of the premises in question; whereupon 
 such Judge or Master may make such order for partition or 
 sale, or such other order as may be proper, and the Master 
 shall thereupon proceed in the least expensive and most ex- 
 peditious manner, according to the practice now in force, for 
 the partition or sale of the premises, the ascertainment of the 
 rights of the various persons interested, the adding parties, the 
 
[254] 
 
 CHANCERY 'ORDERS. 
 
 m i 
 
 
 liil " 
 
 1 ^ 
 
 V' 
 
 
 taxation and payment of costs, and otherwise: Provided 
 always, that where an infant is interested in the estate, no 
 order shall be made for partition or sale until such infant is 
 represented by its guardian ad litem; and provided also that 
 all moneys realized from the estate shall at once be paid into 
 Court, and that no moneys shall be distributed or paid out for 
 costs or otherwise, witt '^ut an order of the Judge in Chambers 
 or the Court ; and on the application for such order, the Judge 
 may review, amend, or refer back to the Master his report or 
 order, or make such other order as he deems proper. 
 
 This Order is also confined to the case of suits instituted by adult persons; 
 where an infant institutes a suit for partition a bill must be filed. This order ex- 
 tends the principle of Order 58 to partition suits ; formerly it was necessary to 
 make all tenants in common of the land in question parties to the bill ; under this 
 order it will sufiSce to notify one or more of such persons. Where the interests are 
 unequal the person having the largest interest should, as a general rule, be noti- 
 fied of the application. In ordering a p>artition or sale the Court will be guided by 
 what is best for the interests of all parties, Blasdell v. Baldwin, 3 App. R. 6. 
 
 Wherever an account is required from any person, such person should be made 
 a defendant in the first instance, as it would seem doubtful whether parties served 
 with the decree in the Master's office can be made to account thereunder, Walker 
 V, Seligmann, L. R. 12 Eq. 152; and see Hopper v. Harrison, cited i notes to 
 Ord. 244. 
 
 The plaintiff was formerly bound to allege, and if disputed, to prove, his title, 
 and under this order it will still be necessary that the affidavits in support of the 
 application should establish the applicant's title, and it would also appear to be 
 necessary to shew thereby the estates and interests of all other persons interested 
 as joint owners. The Court will not decree partition of lands, for which no patent 
 has issued, neither will it decree a sale of such lands at the instance of the repre- 
 sentatives of a deceased locatee, Abell v. Weir, 24 Gr. 464. 
 
 Where there is no Master resident in the County where the lands He or where 
 they are situate, in the County of York, or in more Counties than one, the applica- 
 tion for partition should be made to a Judge in Chambers. The new jurisdiution, 
 here conferred on a Judge in Chambers, cannot be exercised by the Referee in 
 Chambers, see Ord. 560 ; the latter's powers are limited to those matters which on 
 the 23rd of February, 1871, were aone or transacted by a Judge sitting ii 
 Chambers, see Queen v. Smith, 7 P. R. 429 ; Re Amott, Chatterton v. Chattertor, 
 8 P. R. 39. 
 
 Where two or more orders are made for partition of different parts of the same 
 person's estate, the proceedings may be consolidated under Ord. 641. 
 
 By this Order the Master is empowered to make such a decree as the Court has 
 heretofore been accustomed to make in partition suits— except the order for pay- 
 ment of the money out of Court, see note to Ord. 639. For the form of decree 
 which is to be made, see Judic. Act, App. of Forms, No, 172. 
 
 All parties interested in the land who are not served with the notice of motion 
 for the decree ought to be served with an office copy of the decree, Ord. 244. 
 As to such service, see Ord. 244 and notes. When the defendant in possepsion 
 claimed to be entitled absolutely by possession under the Statute of Limitations, 
 proceedings under this Ord. 640, were stayed, and the plaintiff directed to file a 
 bill, Be McMillan, Patterson v. McMillan, 17 U. C. L. J. 86. 
 
 641. When after an order has been made under Order 640, 
 lands are discovered in another County, an application may be 
 made to a Judge in Chambers for the partition or sale of such 
 lands under the order formerly made, and where two or more 
 
'W^ 
 
 wise : Provided 
 in the estate, no 
 bil such infant is 
 rovided also that 
 )nce be paid into 
 d or paid out for 
 dge in Chambers 
 order, the Judge 
 iter his report or 
 proper. 
 
 ied by adult persons; 
 s filed. This order ex- 
 ly it was necessary to 
 to the bill ; under this 
 Vhere the interests are 
 I general rule, be noti- 
 !ourt will be guided by 
 rin, 3 App. B. 6. 
 
 person should be made 
 whether parties served 
 it thereunder, Walker 
 son, cited i notes to 
 
 ted, to prove, his title, 
 Lvits in support of the 
 )uld also appear to be 
 ;her perscms interested 
 ds, for which no patent 
 instance of the repre- 
 
 the lands lie or where 
 s than one, the applica- 
 The new jurisdiction, 
 ised by the Referee in 
 those matters which on 
 •y a Judge sitting i"i 
 Atterton v. Chattertoc, 
 
 irent parts of the same 
 )rd. 641. 
 
 lecree as the Court has 
 ept the order for pay- 
 'or the form of decree 
 i. 
 
 h the notice of motion 
 the decree, Ord. 244. 
 efendant in posseosion 
 Statute of Limitations, 
 intiff directed to file a 
 16. 
 
 under Order 640, 
 )plication may be 
 )n or sale of such 
 here two or more 
 
 ADMINISTRATION SUITS. [266] 
 
 orders have been made by Masters in different Counties, an 
 application may be made in Chambers for an order as to the 
 conduct of the future proceedings. 
 
 The object of this order is to prevent moi-e than one suit being brought in res- 
 pect of the same estate. After an order for partition of lands in the County of Feel 
 had been made by a Master under O. 641, an order was made by a Judge in Cham- 
 bers to include in the first order lands in another County, though such lands were 
 known of at the time the partition order was made, and the costs of the application 
 were allowed, exclusive of the usual commission under O. 643, Clarke v. Clarke, 8 P. 
 R. 1.56. Where more than one suit is brought, under this order application may be 
 made to consolidate them. The costs of the suit which is stayed are prima facie 
 payable out of the estate pari passu with the costs of the suit which is carried 
 on, see re Clark, Cumberland v. Clark, L. R. 4 Ch. App. 412, 
 
 64 !3. There shall be an appeal to the presiding Judge in 
 Chambers — on any day that he may sit in Chambers — against 
 any decree, order, report, ruling or other determination of any 
 Master ; the notice of such appeal shall be a seven days' notice, 
 and shall set out the grounds of objection, and the appeal shall 
 be set down for argument not later than the Saturday pre- 
 ceding the day on which it is to be argued, and shall be 
 brought on for argument within a month — not including va- 
 cation — of the making of such decree, order, report, ruling or 
 determination, or within such further time as a Judge may 
 think proper, and the presiding Judge may then hear, or 
 adjourn into Court, or otherwise dispose of such ^ latters on 
 such terms as he thinks proper. 
 
 This order works an important change in the practice. All appeals from 
 Master's reports are now to be brought on in the first instance before a Judge in 
 Chambers, who has power to adjourn any case he may think proper into Court. 
 
 Under Order 252 a report became absolute without an order confirming the 
 same at the expiration of fourteen days from the filing thereof, unless previously 
 appealed from. Under Order 642 the time for appealing is altered, and dates from 
 the making and not the filing of the report. No report which requires confirma- 
 tion, therefore, now becomes absolute until a month has elapsed from its date and 
 fourteen days from the filing, re Eaton, Byers v. Woodbum, 8 P. R. 289 ; and if 
 any proceedings are required to be taken thereunder before the expiration of the 
 montn, it would require a special order confirming it. An order for confirmation 
 before the lapse of the month would as a general rule, only be made on consent of, 
 or notice to, all parties interested therein and entitled to appeal therefrom. 
 
 Power is reserved to a Judge to extend the time for appealing under this Order, 
 80 as to meet the case of parties who are not notified of the order, report, etc., 
 until after the time limited for appealing therefrom has expired, or so nearly ex- 
 
 Sired as to prevent the party from prosecuting the appeal within the limited time, 
 lut the Court will not extend time merely on account of ignorance of practice, 
 Blaylock v. McFarlane, 15 U. C. J. L. 137. 
 
 This order applies to all orders made by Masters, and supersedes therefore the 
 the provisions of Order 591, so far as it relates to appeals from orders made by 
 Masters. 
 
 Instead of moving ia Court to discharge a decree or order made by a local 
 Master, and which is served under Orders 60 or 244, the practice would seem now 
 to be to appeal therefrom under this order. The notices required by schedules A 
 and L to the Con. Orders would, therefore, in such cases, require to be modified, 
 but where a aecree or order served under Orders 60 or 244 is not made by a locu 
 Master, the practice as to moving to vary, or set it aside remains as formerly. 
 

 ; '1 
 
 ! 
 
 \ 
 
 [256] 
 
 CHANCERY ORDERS. 
 
 It will be observed that Orders 638 and 640 empower the local Masters to make 
 an order for administration, or partition, or sale, but the power to make decrees in 
 mortgage suits is given to the Deputy Registrars. This aiatinction must be care- 
 fully borne in mind, for although most of the local Masters are also Deputy 
 Registrars, yet some of them are not ; it is also to be noted that it is only decrees 
 or orders granted by Masters that are appealable under Order 642. 
 
 A motion to set aside a decree obtained on prcecipe and for leave to answer, 
 may be made in Chambers (Kline v. Kline, 3 Ch. Oh. R. 79,), or such a decree may 
 be varied on petition, a rehearing in such cases being unnecessary, Nelles v. 
 Vandyke, 17 6r. 14 ; see also Simmers v. £rb, 21 6r. 289. 
 
 643. In all suits hereafter instituted for administration, 
 or partition, or administration and partition, unless otherwise 
 ordered by the Court or a Judge, instead of the costs being 
 allowed according to the tariff now in force, each person pro- 
 perly represented by a solicitor, and entitled to costs out of 
 the estate — other than creditors not parties to the suit — shall 
 be entitled to his actual disbursements in the suit, not includ- 
 ing counsel fees, and there shall be allowed for the other costs 
 of the suit payable out of the estate, a commission on the 
 amount realized, or on the value of the property partitioned, 
 in the suit, which commission shall be apportioned amongst 
 the persons entitled to costs, as the Judge or Master thinks 
 proper. Such commission shall be as follows : — 
 
 On sums not exceeding $500 20 per cent. 
 
 For every additional $100 up to $1,500.. 5 " " 
 For every additional $100 up to $4,000 . . 3 " " 
 For every additional $1,000 up to $10,000 2^ " 
 For every additional $1,000 1 " " 
 
 and such remuneration shall be in lieu of all fees, whether be- 
 tween " party and ])arty," " as between solicitor and client," or 
 " between solicitor and client." 
 
 The commission payable under this order is divisible only between those who 
 are strictly parties to the suit, properly represented by a solicitor, and entitled to 
 costs out of the estate. Persons not originally made parties to the suit, but served 
 with a copy of the decree under Ord. CO, are not thereby made parties to the suit, 
 but are merely enabled to attend the proceedings, and are bound thereby as though 
 they were actually parties, English v. English, 12 Ur. 441. In a suit by a residuary 
 legatee, the plaintiff sufficiently represents the other residuary legatees, and they 
 are not entitled as of course to costs out of the estate occasioned by their appearing 
 bv another solicitor in the Master's office, Gorham v. Gorham, 17 Gr. 386. 
 Creditors who are neither plaintiffs nor defendants are also excluded from partici- 
 pation in the commission, and their costs will be disposed of as formerly. The com- 
 mission is to cover both the solicitor's fees and the fees to counsel. It is of course 
 not intended to cover costs ordered to be paid by one party to another. It is 
 intended to cover only costs payable out of the estate. The commission should be 
 divided into equal fractional parts, and the parts allotted to the solicitors in pro- 
 portion to the amount of work done by and tne responsibility imposed upon them. 
 Objections to the commission allotted, may be raised on a motion for distribution 
 without previous notice of appeal being given. Dodge v, Clapp, 8 F. R. 388. 
 
 Where the principal part of the costs of a suit are ordered to be paid personallv 
 by one or more of the parties, and the costs of only a small proportion of the work 
 done, are chargeable against the estate, it does not appear that in such a case the 
 full amount of the commission here provided would oe payable, and the power 
 
ADMINISTRATION SUITS. 
 
 [257] 
 
 tl Masters to make 
 to make decrees in 
 tion must be care- 
 I are also Deputy 
 it is only decrees 
 12. 
 
 leave to answer, 
 
 such a decree may 
 
 tcessary, Nelles v. 
 
 dministration, 
 less otherwise 
 B costs being 
 ih person pro- 
 I costs out of 
 he suit — shall 
 it, not includ- 
 ;he other costs 
 lission on the 
 Y partitioned, 
 oned amongst 
 Master thinks 
 
 per cent. 
 
 <( « 
 
 3, whether be- 
 md client," or 
 
 >etween those who 
 )r, and entitled to 
 tie suit, but served 
 parties to the suit, 
 thereby as though 
 mit by a residuary 
 legatees, and they 
 by their appearing 
 lam, 17 Gr. 386. 
 ided from partici- 
 rmerly. The com- 
 il. It is of course 
 to another. It is 
 imission should be 
 e solicitors in pro- 
 iposed upon them, 
 in for distribution 
 I P. R. 388. 
 
 be paid personallv 
 )rtion of the wort 
 in such a case the 
 le, and the power 
 
 reserved to the Judge to make other order would probably be exercised. Gases 
 might arise where from special circumstances the commission here provided would 
 be clearly inadequate, and in such cases too it would be possible that the power to 
 make other order as to the costs would be exercised. 
 
 644. When two or more suits are instituted for adminis- 
 tration, or partition, or sale, the Judge may, in his discretion, 
 disallow all, or any, of the costs of any suit or suits, which in 
 his opinion has or have been unnecessarily prosecuted. 
 
 By Ord. 308 the Master is directed not to allow a party on taxation any costs 
 which do not appear to have been necessary or proper for the attainment of justice 
 or for the defending his rights, or which appear to have been incurred through 
 over-caution, negligence or mistake, or merely at the desire of the party ; and 
 under Ord. 315 unnecessary costs occasioned by defendants severing in their defence 
 are to be disallowed. Under the present order the whole costs of a suit may be 
 disallowed if it has been commenced or prosecuted unnecessarily, and not only the 
 costs of the plaintiff but those of defendants as well, the latter having power under 
 Ord. 641 to prevent the prosecution of more than one suit. 
 
 645. Order 434 shall apply to cases in which an adult is 
 
 interested in the estate as well as an infant, and also to suits 
 
 for redemption. 
 
 Order 434 was held to apply only to cases where all the defendants weie infants. 
 Where there were adult aefendants, as well as infants, the order was held not to 
 apply, and such suits had consequently to be set down for hearing in Court, Ful- 
 lerton v. Keely, 9 U. C. L. J. N. S. 54. The present order was passed so as to enable 
 such suits to be disposed of before the Referee in Chambers. 
 
 646. Order 435 shall apply to redemption suits : and under 
 Orders 434 and 435 there may be granted, where it is prayed 
 for, and notice is given in pursuance of Order 647, a decree 
 embracing the additional relief which this Court is entitled, 
 under " the Administration of Justice Act " to give, in mort- 
 gage cases, on the hearing of the cause pro confesso, and such 
 a decree may be granted, notwithstanding that the defendant 
 has been served by publication, or otherwise, or is a corpora- 
 tion : Provided always that where the bill has not been person 
 ally served, the claim of the plaintiff shall be duly verified by 
 affidavit. 
 
 By this Order the power of the Registrar to issue decrees on prcecipe is extended 
 to redemption suits, Order 436 having previously restricted that power to suits for 
 foreclosure or sale. 
 
 To obtain the additional relief referred to in this Order, it must be prayed for in 
 the bill, and the office copy of the bill served on the defendant must have been en- 
 dorsed with the additional notice required by Order 647. Where an order for pay- 
 ment is required the bill should allege facts shewing the personal liability or the 
 defendant. The order for payment cannot be made unless the defendant nave by 
 covenant or otherwise made himself personally liable for the debt, Christie v, Dow- 
 ker, 10 Gr. 199 ; 10 U. C. L. J. 161. Where the defendant is merely the owner of the 
 equity of redemption as assignee of the original mortgagor, and has entered into no 
 covenant or agreement to pay the mortgage debt, an order for payment cannot pro- 
 perly be made against him, but where the original mortgagor is a party and is 
 legally bound to pay the debt, he may be ordered to pay it, notwithstanding that 
 he may have conveyed away his equity of redemption to a co-defendant. 
 
 Where an order for delivery of possession is prayed the bill should shew who is 
 in possession, and also the plaintiff's right to have immediate possession. 
 
[258] 
 
 CHANCERY ORDERS. 
 
 647. In suits for foreclosure or sale, where the plaintiff 
 prays for an order for the immediate delivery of possession, or 
 for an order for immediate payment against a defendant, he 
 must, in addition to the notice required by Schedule S, 
 endorse upon the oflBce copy of the bill served upon the de- 
 fendant, the further notice : 
 
 !illi!!l 
 
 i V 
 
 (Where order for immediate possession prayed.) 
 
 " And the plaintiff will be entitled to an order for the im- 
 mediate delivery of possession of the mortgaged premises to 
 him." 
 
 (Where order for immediate payment prayed.) 
 
 "And the plaintiff will be entitled forthwith to execution 
 against the goods and lands of you (naming the defendant 
 against whom the plaintiff is entitled to this relief) to recover 
 payment of the amount due by you." 
 
 For indorsements on writs in mortgage suits, where immediate possession or 
 
 !)ayment is desired, see Judic. Act O. III., r. 7 ; appendix of Forms, No. 9, 
 d) & (e). 
 
 648. Every Deputy-Registrar shall have the same power, 
 as to the issue of decrees on praecipe, as by Order 646, and the 
 Consolidated General Orders, is given to the Registrar of the 
 Court. 
 
 As to issuing a decree on praecipe in a mortgage suit, see Judic. Act, O. IX., 
 rr. 10, 11. _ The decree will be drawn up upon praecipe upon proof of service of the 
 writ duly indorsed. 
 
 Under Order 435 the Registrar has power to issue on praecipe any decree in 
 mortgage cases that the Court would previously to that Order have made upon a 
 hearing pro confesso, Kirkpatrick v. Howell, 22 Gr. 94. 
 
 Where the defendant has been served by publication, proof of the plaintiff's 
 claim must be adduced, see Order 646. In other cases no affidavit is required from 
 the plaintiff proving his claim, but the account is to be taken on the basis of the 
 special indorsement. Where, however, the plaintiff, as is sometimes the case, 
 admits that he has made an indorsement for more than is actually due, it should be 
 stated in the decree that he abandons the excess claimed by the indorsement, and 
 only the balance should be ordered to be paid. 
 
 649. Every decree or order hereafter made by the Court, 
 whether the service of the bill, or other proceedings on the de- 
 fendant, has been personal, by publication, or otherwise, shall 
 be absolute in the first instance, ^less the Court shall other- 
 wise order. 
 
 This Ordei creates an important change in the practice : formerly a decree 
 ounded on an order pro confesso, in cases where the defendant had not been served 
 
ADMINISTRATION SUITS. 
 
 [259] 
 
 personally, and had not appeared at the hearinfir, was merely a decree nisi and re- 
 quired to be made absolute under Order 114 et sea. Under Order 649 all decrees 
 are to be absolute in the first instance, unless the Court otherwise order. 
 
 Where the decree is granted on praecipe gainst a defendant who has not been per* 
 sonally served with the bill, the plaintiff's claim is required to be verified by affi- 
 davit (Order 646) ; and it would seem probable that the same rule would be fol- 
 lowed in causes heard in Court. 
 
 650. The Local Masters and Deputy-Registrars shall enter 
 in a book or books, kept for that purpose, all decrees or 
 orders made by them, and they shall, on the conclusion of 
 every suit or matter, annex together all the pleadings and 
 papers, filed with them in such suit, or matter, and transmit 
 the same to the Clerk of Records and Writs, who shall duly 
 enter and file the same. 
 
 PROCEEDINGS IN ADMINISTRATION SUITS. 
 
 PARTIES. 
 
 1. Plaintoffs. 
 
 It is competent to the following persons to make application for adminis- 
 tration : — 
 
 (a) A specific, pecuniary or residuary legatee, or next of kin ; G. O. Chy. 58, r. 1. 
 
 (*) A legatee interested in a legacy charged upon real estate, or a person inter- 
 ested in the proceeds of real estate directed to be sold ; G. O. Chy. 58, r. 2. 
 
 Application for administration order, made within a year from death of testator, 
 but uncorroborated, refused, Vivian v, Westbrooke, 19 Gr. 461 : nevertheless an 
 action to administer the estate, can be instituted at any time after the death of 
 the testator, Prosser v. Mossop, W. N. (1881) 38 ; but see Slater v. Slater, 3 Ch. 
 Ch. r. 1. 
 
 (c) A residuary devisee or heir ; G. 0. Chy. 58, r. 3. 
 
 Where residuarjr devisees had died abroad before the institution of the suit, and 
 were made parties, in ignorance of their death, the suit was proceeded with, without 
 making their real representatives parties, Bateman v. Cook, 1 W. R. 242. 
 
 As to making several of a numerous class represent the class, both as plaintiffs 
 and defendants, see Bromley v. Williams, 32 Bevan 177 ; Gorham v. Gorham, 17 
 Gr. 386; also Judicature Act, O. XII., r. 11. 
 
 {d) One of several ccatuisque trust under a deed or instiaiment for the execution 
 of the deed or instrument, G. O. Chy. 58, r. 4. 
 
 Decree for the appointment of new trustees and conveyance of the trust estate 
 in the suit by some of the cestuis que trust, and a direction to serve the others with 
 notice of the decree, Jones v. Jones, 9 Ha. app. 80. 
 
 Money recovered from a trustee in a suit by cestui que trust to repair breach of 
 trust as to one share of the trust estate, McLeod v, Annesly, 16 Beav. 600. 
 
 If the whole fund be not forthcoming, owing to a breach of trust, a party en- 
 titled to a moiety, although ascertained, cannot sue for payment without making 
 the person entitled to the other moiety a party, Lanaghan v. Smith, 2 Phil. 301 : 
 Munch V. Cockerell, 8 Sim. 219. 
 
 

 !i i' 
 
 m ' 
 
 '\ 1 i ■'■ 
 
 f % 
 
 f-vii 
 
 M 
 
 liij 
 
 K"=^ 
 
 I 
 
 P'.' 
 
 P Ji- 
 
 »!■ 1/;'' 
 
 [260] 
 
 CHANCERY ORDERS. 
 
 Where cestuis que trust have by their conduct made themselves trustees, they 
 ought to be parties, Jesse v. Bennett, G D. M. & G. 609. Strangers who have 
 aidfed in misapplying funds, are proper parties, Lund v. Blanchard, 4 Ha. 9. 
 
 (c) One person on behalf of himself and of others in the same interest in cases 
 of suits for the protection of property pending litigation, and in cases of the nature 
 of waste, G. O. Chy. 58, r. 5. 
 
 (/) An executor, administrator or trustee, G. O. Chy, 58, r. 6. 
 
 The personal representative may file a bill as a creditor simply, upon a testator's 
 estate, against a devisae of lands under the will, after the fjersonalty is exhausted, 
 and obtain a decree as an ordinary creditor. Tiffany v. Tiffany, 9 Gr. 1.58. 
 
 Trustees and executois stand in a different position from creditors or cestui que 
 trust as to the right to have the estate administered, and cannot, without shewing 
 material difficulty, ask for administration, Cole v. Glover, 16 Gr. 392 ; McGill v. 
 Courtice, 17 Gr. 271. 
 
 The application for administration by an executor will be refused where appar- 
 ently unnecessary, Barry v. Barry, 19 Gr. 458 ; an executor will be charged with 
 the costs of a suit for administration unnecessarily instituted, lb. 
 
 Deficiency of assets by which all creditors become entitled to share pari passu 
 entitles an administrator to apply, Swetnam v. Swetnam, 10 U. C. L. J. N. S. 135. 
 
 (^r) An assignee of a chose in action, without making the assignor a party, G. 0. 
 Chy. 58, r. 7. 
 
 (A) A creditor upon an'estate. 
 
 Where the plaintiff had, at the request of the mother or natural guardian of the 
 infant heirs, advanced money to pay tne debts of their ancestor, to save costs of suit 
 therefor, he was held entitled to sustain a suit for administration as a creditor, 
 Glass V. Munsen, 12 Gr. 77. 
 
 In consequence of the wording of Orders 638-9, the Master in Ordinary has no 
 8uch jurisdiction as thereby is conferred upon the Local Masters, and therefore, in 
 the case of an order for the administration of the estate of a deceased person in the 
 County of York, the applicant is relegated to the former practice and should set 
 down the cause on further directions, in order to obtain the sanction of the Court 
 for the sale of the lands. 
 
 A married woman filing a bill, in respect of real estate, must do so by a next 
 friend or alone, according to whether the date of her marriage was prior or subse- 
 quent to 2nd March, 1872, R. S. 0. c. 12.5, s. 4 ; but see the original Apt, 35 Vic, c. 16, 
 8. 1, where the distinction does not turn upon the date of the marriage and qucere 
 as to property acquired between the passing of that Act and the Revised Statutes, 
 Abel V. Weir, 24 Gr. 464 ; Godfrey v. Harrison, 8 P. R. 272, where the question 
 does not seem to have been raised as to property acquired between 35 Vic, c. 16, s. 
 1, and the passing of the R. S. O. ; see notes to Judicature Act, O. XII., r. 9. 
 
 Where the per&onal representative makes application for the administration of 
 the personal estate the application can be granted ex parte, per Esten, V.-C, re 
 Dunlevy, see Order Book 11, fo. 778; re Ette, 6 P. R. 159 ; re Bromley, V.-C. B., 
 20 January, 1878, 
 
 A decree for administration cannot be made in the absence of a personal repre- 
 sentative as against an executor named in the will who has not taken out letters 
 probate, Rowsell v. Morris, L. R. 17 Eq. 20. 
 
 Where a party, in addition to a declaration of the true construction of a will, is 
 entitled to ask as cons^uential thereto the administration of the estate, the case 
 is within G. 0. 538 ; MOtphy v. Murphy, 20 Gr. 575. 
 
 Where there are more than one personal representative all must be notified, 
 notwithstanding that one is resident out of the jurisdiction, Ereebom v. Carroll, 6 
 P. R. 188. 
 
 2. Defendants. 
 
 Under Orders 638-9, the parties defendant who should be notified are : 
 
 (a) In any event the personal representative. 
 
 Where there is no personal representative and where by the strictest proof it is 
 shewn that the personal estate is nominally or virtually 7iil, it has been held that 
 
ADMINISTRATION SUITS. 
 
 Ives trustees, they 
 rangers who have 
 rd, 4 Ha. 9. 
 
 interest in cases 
 cases of the nature 
 
 f, upon a testator's 
 lalty is exhausted, 
 ) Gr. 158. 
 
 Htors or cestui que 
 
 ., without shewing 
 
 r. 392; McGill v. 
 
 used where appar- 
 1 be charged with 
 b. 
 
 o share pari passu 
 L. J. N. S. 135. 
 
 gnor a party, G. 0. 
 
 iral guardian of the 
 to save costs of suit 
 ttion as a creditor, 
 
 n Ordinary has no 
 8, and therefore, in 
 eased person in the 
 >ice and should set 
 iction of the Court 
 
 list do so by a next 
 was prior or subse- 
 ilApt, 35Vic.,c. 16, 
 marriage and quwre 
 e Revised Statutes, 
 where the question 
 en 35 Vic, c. 16, s. 
 ;, O. XII., r. 9. 
 
 e administration of 
 ler Esten, V.-C, re 
 Bromley, V.-C. B., 
 
 )f a personal repre- 
 ot taken out letters 
 
 bmction of a will, is 
 the estate, the case 
 
 11 must be notified, 
 reeborn v, Carroll, 6 
 
 itiiied are ; 
 
 e strictest proof it is 
 t has been held that 
 
 [261] 
 
 under B. S. O., c. 49, s. 9, upon motion for an order for administration before a 
 Judge in Chambers, an administrator ad litem may be appointed, re Horton, per 
 V.-C. Proudfoot. 
 
 If infants are made parties to the notice of motion, and consequently parties to 
 the order, it is necessary to issue an order appointing a guardian ad litem, and to 
 serve the requisite notice of motion. See as to service upon the official guardian 
 under the Judicature Act, O. VI., r. 4. 
 
 (6) Heir-at-law must have notice if it is desired to deal with the realty, G. O. 
 Chy. 472. 
 
 In creditor's bill against the devisees of a debtor it is not indispensable that the 
 heir-at-law should be made a party, Fenny v. Priestman, 1 Gr. 133. 
 
 Where a trustee commits a breach of trust, the person participating in it is not 
 a necessary party to a suit for the general administration of the trust estate, 
 Tiffany v. Thomson, 9 Gr. 244. 
 
 3. Practice and Prooedurk. 
 
 By the Judicature Act, O. I., r. 3, the Orders of the Court of Chancery, Nos. 
 467-487, 638-650, are to be applicable to all Divisions of the High Court of Justice. 
 See these Orders, ante. 
 
 Application, how made. — Application for administration should be m.ade upon 
 a fourteen days' notice of motion, returnable before the Master in the county in 
 which the deceased person resided at the time of his death ; or, in the event of 
 such residence being within the County of York or there being no Master's office 
 in an outer county, to a Judge in Chambers, G. O. Chy. 638. 
 
 Orders 638-9 apply to simple cases only and to applications made by adults ; 
 where administration is sought on behalf of an infant, or where the person whose 
 estate is to be administered resided in the County of York or in any county where 
 there is no local Master, the application must be made in Chambers or, where 
 necessary, by action. 
 
 As to the application by the personal representative, . where there is a de- 
 ficiepcy of assets to pay debts, see re Ette, 6 P. R. 159 ; re Shipman, Wallace v. 
 Shipman, 24 Gr. 177 ; Swetnam v. Swetnam, 6 P. R. 149 ; Marsh v. Marsh, 7 V. R. 
 129 ; re Jack, Jack v. Jack, 13 U. C. L. J. 358 ; but an executor cannot institute 
 suit for administration for the sole purpose of indemnification by passing his 
 accounts, White v. Cummins, 3 Gr. 602; Cole v. Glover, 16 Gr. 392; Barry v. 
 Barry, 19 Gr. 458 ; and so doing, may be refused his costs of a suit unnecessarily 
 brought, Graham v. Robson, 17 Gr. 318 ; or may be ordered to pay costs if the 
 suit appears to have been improperly instituted, McGill v. Courtice, 17 Gr. 271 ; 
 Sullivan v. Sullivan, 16 Gr. 94. 
 
 If the guardian ad litem makes no objection to unnecessary proceedings, no 
 costs are given, eithei to the executors or to the guardian, Springer v. Clark, 15 
 Gr. 664. 
 
 For form of notice of application for administration order, see Judicature Act, 
 Forms, No. 12. 
 
 Bill or aHion. — Orders 467 & 438 apply to simple cases only, Barry v. Brasil, 
 1 Ch. Ch. 248 ; re Forster, Griffith v. Foster, 20 Gr. 345 ; Nudel v. Elliott, 1 Ch. 
 Ch. 326 ; Cameron v. McDonald, in re McDonald, 2 Ch. Ch. 29. 
 
 If the Statute of Limitations or a question of title is to be raised by any of the 
 parties, a bill should be filed, McDonald v, McGillis, 8 P. R. 339 ; and. generally if 
 the rights of the parties are such as to require pleadings to raise them, the case ia 
 not within the jurisdiction of the local Master, Laidlaw v. Jackes, 22 Gr. 171 ; 25 
 Gr. 293 
 
 Material for motion — Notice — Service. — It is necessary upon motion, under Order 
 638, to prove by affidavit the status of the applicant, and his reason for making the 
 application ; e.g., the death and either (a) the testacy of the deceased person, whose 
 estate it is desired to administer, and the material provisions of the will, the 
 executors or personal representative, or (h) the intestacy which must be proved by 
 affidavit made by a competent person, such as the widow or other member of the 
 family, that search has been made for a will, and that no will has been found. It 
 is not a matter of course that the Court of Chancery will accept a proof of intestacy 
 
 I 
 
[262] 
 
 CHANCERY ORDERS. 
 
 by the usual affidavit, filed in the Surrogate Coiiit, upon issue of Letters of 
 Administration. 
 
 The notice of motion is a fourteen days' notice. Service should be personal ser- 
 vice, unless a solicitor undertakes to accept service for any adult party whom it is 
 necessary to serve. Service upon a guardian ad liten of an infant after issue of 
 order appointing such guardian, is sutncient service upon an infant. 
 
 Application, whtn granted or refused. — Where a creditor brings an adminis- 
 tration suit after being informed that there are no assets applicable to the pay- 
 ment of his claim, if the information appear bj' the result to be substantially 
 correct, he will have to pay the costs of the suit, City Bank v. Scatcherd, 18 Ur. 
 185. 
 
 As to whether a deficiency of assets for payment of debts entitles the personal 
 representative to make application to the Court appears doubtful, re Snipman, 
 Wallace v. Shipman,_24 Gr. 177; Marsh v. Marshy? P. R. 129^ re Jack, Jackj'. 
 Jack, 
 149. 
 
 13 U. C. L. J. 358; re Ette, 6 P. R. 159; Swetnam v. Swetnam, 6 P. R. 
 
 Motion for administration where questions raised were substantially the same 
 as would liave been raised in an alimony suit, order refused, Be Foster, Griffith v. 
 Foster, 20 Gr. 345 ; see also Fenwick v. Fenwick, 20 Gr. 381 ; (Toodfellow v, 
 Rannie, 20 Gr. 425. 
 
 It is open to plaintiff in a suit for the construction of a will to ask for adminis- 
 tration of the estate as consequential relief. The consequential relief may or may 
 not be granted, but the suit is not open to objection therefor. See G. O. Chy. 538; 
 Murphy v. Murphy, 20 Gr. 575. 
 
 In the case of small estates an administration can onlv be justified where every 
 possible means of avoiding suit have been exhausted before its institution, 
 McAndrew v. La Flamme, 19 Gr. 193. 
 
 The control of the Court ceases with the death of a lunatic. Administration 
 granted upon application of the committee, re Brillinger, 3 Ch. Ch. R, 290. 
 
 Form of Order. — The form of order formerly used, and still in use in the County 
 of York, is as follows : — 
 
 In the case of a testator : — 
 
 it is ordered that 
 of this 
 
 Upon the application of the above named 
 the following accounts and inquiries be taken and made by the 
 Court that is to say : 
 
 1st. An account of the personal estate not specifically bequeathed of 
 
 deceased, the testator in the proceedings named come to the hands of 
 or to the hands of any other person or persons by 
 order or for use. 
 
 2nd. An account of the said testator's debts. 
 
 3rd. An account of the said testator's funeral expenses. 
 
 4th. An account of the said testator's legacies. 
 
 5th. An inquiry, what parts, if any, of the said testator's personal estate are 
 still outstanding or undisposed of. 
 
 And it is ordered that the said testator's personal estate not specifically be- 
 queathed be applied in payment of his debts and funeral e^fpenses in a due course 
 of administration, and then in payment of his legacies. 
 
 And it is ordered that the following f urthe- accounts and inquires be taken and 
 made by the said that is to say : 
 
 6th. An inquiry what real estate the said testator was seised of or entitled to 
 at the time of his death. 
 
 7th. An inquiry what incumbrances affect the said testator's real estate. 
 
 8th. An recount of the rents and profits of the said testator's real estate, re- 
 ceived by the said or by any other person or persons 
 by order or for use. 
 
 9th. And the said ■ is to inquire and state who are the proper per- 
 
 Bons <!ntitled to share in the real and personal estate of the said testator, and in 
 what proportions. 
 
ADMINISTRATION SUITS. 
 
 [263] 
 
 issue of Letters of 
 
 ould be personal ser- 
 ult party whom it is 
 infant after issue of 
 
 fant. 
 
 brings an adminis- 
 
 >plicable to the pay- 
 
 *. to be substantially 
 
 V. Soatcherd, 18 Gr. 
 
 entitles the personal 
 )ubtful, re Shipman, 
 29 ; re Jack, Jack v. 
 Swetnam, 6 P. R. 
 
 bstantially the same 
 2e Foster, Griffith v. 
 381 ; (^oodfellow v. 
 
 1 to ask for adminis- 
 al relief may or may 
 See G. O. Chy. 538; 
 
 ustified where every 
 ore its institution, 
 
 ic. Administration 
 . Ch. R. 290. 
 
 in use in the County 
 
 it is ordered that 
 B of this 
 
 Bathed of 
 
 mie to the hands of 
 
 • persons by 
 
 personal estate are 
 
 not_ specincally be- 
 ses in a due course 
 
 quires be taken and 
 
 3d of or entitled to 
 
 B real estate. 
 
 or's real estate, re- 
 
 >r person or persons 
 
 are the proper per- 
 id testator, and in 
 
 And it is ordered that further directions and the question of costs be reserved 
 until after the said shall have made his report. 
 
 js to make his report within 
 
 months from the 
 
 
 it is ordered that 
 of this 
 
 deceased, the 
 or to 
 use. 
 
 And the said 
 date hereof. 
 
 In the case of an intestate : — 
 
 Upon the application of the above named 
 the following accounts and inquiries be taken and made by the 
 Court that is to say : 
 
 Ist. An account of the personal estate of 
 intestate in the proceedings named come to the hands of 
 the hands of any other person or persons by order or for 
 
 2nd. An account of the said intestate's debts. 
 
 3rd. An account of the said intestate's funeral expenses. 
 
 4th. An inquiry, what parts, if any, of the said intestate's personal estate are 
 still outstanding or undisposed of. 
 
 And it is ordered that the said intestate's personal estate be applied in pay 
 ment uf his debts and funeral expenses in a due course of administration. 
 
 And it is ordered that the following further accounts and inquires be taken and 
 made by the said that is to say : 
 
 5th. An inquiry what real estate the said intestate was seised of or entitled to 
 at the time of his death. 
 
 6th. An inquiry what incumbrances affect the said iutestate's real estate. 
 
 7th. An account of the rents and profits of the said intestate's real estate, 
 received by the said or by any other person or 
 
 persons by order or for use. 
 
 8th. And the said Master is to inquire and state who are the proper persons 
 entitled to share in the real and personal estate of the said intestate, and in what 
 proportions. 
 
 And it is ordered that further directions and the question of costs be reserved 
 until after the said shall have made his report. 
 
 And the said Master is to make his report within months from 
 
 the date hereof. 
 
 For form of an order to be made by a Local Master, see Judicature Act, Forms, 
 No. 171. 
 
 Proceedings in the Master's Office. — See the G. 
 the notes to these Orders, ante. 
 
 0. Chy. 211-251, 474-487, and 
 
 By O. XII., r. 26, of the Judicature Act, in any cause or matter for the admin- 
 istration of the estate of a deceased person, no party other than the executor or 
 administrator shall, unless by leave of the Judge, be entitled to appear either in 
 Court or in Chambers on the claim of any person not a party to the cause against 
 the estate of the deceased in respect of any debt or liability. 'The Judge may direct 
 any other party to the cause to appear, either in addition to or in the place of the 
 executor or administrator, upon such terms as to coats or otherwise as he shall 
 think tit. 
 
 Master's Report and appealing therefrom, — See as to the time for appealing from 
 a report generally, G. O. Chy. 253 and notes, and see page [229], ante. 
 
 The general object of the Orders of 10th June, 1879, was to simplify and 
 economize litigation, and it has been already held by the Judges that the following 
 among other objections to a Master's report may be raised upon motion for distri- 
 bution before a Judge in Chambers, under Order 639, without previous notice of 
 appeal having been given : — 
 
 (1) Correctness of the Master's ruling as to right to dower or tenancy by the 
 curtesy of any party to the suit ; 
 
 (2) The award by the Master of a sum in gross or an annual sum to such 
 dowress or tenant by the curtesy. Under the "Dower Act of J 879, "42 Vic, o. 
 22, s. 5, it is discretionary with the Court to allow a sum in gross, or an annual 
 Bum; and, with regard to dower, it is the practice to allow an annual sum, or in 
 
i: 
 
 I 
 
 [264] 
 
 CHANCERY 0BDER8. 
 
 J 
 
 t ^ 
 
 other words, the interest upon one-third of the proceeds of the sale of realty rather 
 than a sum in t^rosii, unless in exceptional circumstances, or in the case of a consent 
 by the dowress to accept a less sum than the amount fixed by the annuity tables. 
 
 In the case of a tenant by the curtesy, the Court will, under no circumstances, 
 allow a gross sum in full, and aemble in the case of a life interest, as e.if., a mother 
 entitled to a life estate in deceased's child's share, Allan v, Kennedy, the Chancellor, 
 2Sept.,188i). 
 
 Where the time for appealing has elapsed, the Court may, under special ciroum- 
 stances, give leave to appeal, but such leave to appeal can only be obtained upon 
 motion, notice of which has to be given. Cozens v. MoDoutfall, 1 Ch. Ch. K. '2U ; 
 Larkin v. Armstrong, 1 Ch. Ch. R. 31 ; Cade v. Newhall, 1 Ch. Ch. R. 200. As to 
 what should be shewn on special application, see Thomson v. Walker, 1 Ch. Ch. 
 R. 256 ; and see notes to sec. 38 of the Judicature Act. 
 
 A clerical error in the Master's Report apparent on the face of it can be 
 ♦wrrected on an ex parte application, White v. Courtney, 1 Ch. Ch. R. 11 ; Watson 
 .;. Moore, 1 Ch. Ch. R. 2(«i. 
 
 After the Master has signed his report he is functus officio, and no certificate by 
 him as to any omission or mistake can be used, unless by the direction of a Judge, 
 Rosebatch v. Parry, 27 Gr. 193. 
 
 Upon an appeal from a Ma' ler's report, the general rule is that the Court will 
 not consider the weight of evidence taken before the Master, Day v. Brown, 18 Gr. 
 681 ; and see Livingstone v. V'ood^l Can. L. T. 2fi7 ; but, for a modification of 
 this doctrine, see Blake v. Kirl.patnck, 1 Can. L. T. 267. 
 
 Where a report is appealed f ■-•om and some of the grounds allowed, and the report 
 referred back to be reviewed, an appeal will not lie against the further report 
 therein for matters disposed of by the first report, and not objected to on the original 
 appeal, Ross v, Perrault, 13 Gv. 206. 
 
 A report can be confirmed upon a consent of all parties by order of a Judge, but 
 the order will not be made where any of the creditors have proved claims without 
 their consent also. 
 
 It may also be here incidentally observed that under n" :i Ih. ' itioii decree 
 made by a local Master the Referee has no power ^^ din' use wiili jiiyment into 
 Court by a purchaser, such order can only be mad fudge when or after the 
 
 report comes before him for review in accordaii 'rder 639. 
 
 Upon the objection of any of the parties, the • oefore whom tli | lort comes 
 
 for review, will order the Master's apportionrae i the coTumission t<> be revised 
 by the Master-in-Ordinary, and all pleadings aim , pers i the suit being, under 
 Order 650, sent to the Clerk of Records and Writs, ttiey a carried into the oflSce 
 of the Master-in-Ordinary upon request from him, Campijoll v. Campbell, 8 P. R. 
 159; Dodge v. Clapp, 8 P. R. 388. 
 
 Sale of realty only in case of necessity, — It should be observed that the practice in 
 administration suits, as it existed prior to 9th January, 1879, is in no wise altered 
 by>the General Orders of that date, 638-651. Owing to the general wording of 
 Order 639 it might be inferred that the Master has power to realize by sale, or 
 otherwise dispose of the whole estate, real or personal, but this is not so ; the 
 personality must, as heretofore, be exhausted in payment of debts and costs of suit 
 before the realty can be approached, and then only so much of the realty can bi 
 disposed of as may be necessary to supply the deficiency, if any. If the object be 
 to wind up and finally dispose of the estate, including lands not required for pay- 
 ment of debts, the proceeaings should be instituted under Order 640, and Orders 
 638 and 639, na analogous to a bill filed under the former practice for partition and 
 administration. 
 
 O. XLVI., r. 8, of the Judicature Act provides that where the trusts of any 
 will or settlement are being administered, and a sale is ordered of any property 
 vested in the trustees of such will or settlement upon trust for sale or with power 
 of sale by such trustees, the conduct of such sale s^'-'ll be given to such trustees, 
 unless the Judge shall otherwise direct. 
 
 Coats. — In case of deficiency of assets, and where proceedings have resulted to 
 the benefit of the estate, costs will be ordered to be paid out of the estate, as between 
 solicitor and client, notwithstanding that creditors cannot be paid in full, re Hirons, 
 Foster v. Hirons. 26 Gr. 211. 
 
ADMINISTRATION SUITS. 
 
 [266] 
 
 HEARINa ON ifURTHER DIRROTIOKS OR ON MOTION TO DISTRIBUTE. 
 
 (1) Further directiona. — Where the proceetlin^f ia upon bill filed, decree renervinf; 
 further directions, or upon order where the decoased perscm resided in the County 
 of York, it is necessary to set the cause down for hearing on further directions, as 
 formerly. Order 418 nrovides that "the cause is to be entered with the Clerk of 
 Records and Writs at least seven davs before the day for which it is set down, and 
 seven days' notice of motion must be served upon all parties entitled to notice 
 thereof.'*^ 
 
 Under Order 419, " Where further directions have been reserved, if the party 
 having the conduct of the cause does not set down the name for hearing on further 
 directions, and serve notice thereof within fourteen days after confirmation of the 
 report, any other party affected by the report may set the same down and serve 
 notice of hearing. 
 
 Under Order 420, "No cause set down for argument of demurrer or by way o£ 
 motion for decree, or on bill and answer, or on appeal from the Master's report, or 
 on further directions, or on any petition mentioned in Order 418, adjourned over 
 from the day for which such cause was originally set down, is to be brought on for 
 argument during the month of June ; and, except on circuit, no cause is to be heard 
 during the month of June, unless counsel certify that no point is involved in it on 
 which it may be necessary for the Court to reserve judgment." 
 
 Order 639 provides, inter alia, that all moneys realized from the estate shall at 
 once be paid into Court, and that no moneys shall be distributed or paid out for 
 costs or otherwise, without an order of the Judge in Chambers or the Court, and 
 on the application for such order, the Jud''e may review, amend or refer back to 
 the Master his report or order, or make such other order as he deems proper. 
 
 This motion is made before a Judge in Chambers on Monday, after the report 
 has become confirmed. All parties are entitled to notice, and the questions already 
 referred to are then open for discussion. 
 
 It will be observed that in consequence of this order the power to dispense with 
 payment into Court by purchasers in administration suits, is taken away from the 
 fleferee. 
 
 Commisgion, Division. — Order 643 provides for the payment of commission upon 
 the value of the estate realized in lieu of costs, as follows :— 
 
 " In all suits hereafter instituted for administration or partition, or administra- 
 tion and partition, unless otherwise ordered by the Court or a Judge, instead of the 
 costs being allowed according to the tariff now in force, each person properly re- 
 presented by a solicitor, and entitled to costs out of the estate — other than creditoru 
 not parties to the suit —shall be entitled to his actual disbursements in the suit, not 
 including counsel fees, and there shall be allowed for the other costs of the suit 
 payable out of the estate, a commission on the amount realized, or on the value of 
 the property partitioned in the suit, which commission shall be apportioned amongst 
 the persons entitled to costs, as the Judge or Master thinks proper. Such commii- 
 sion shall be as follows: — 
 
 On sums not exceeding $500 20 per cent. 
 
 For every additional $100 up to $1,500 5 " 
 
 For every additional $100 up to $4,000 3 " 
 
 For every additional $1,000 up to $10,000. . . 2i " 
 
 For every additional $1,000 1 " 
 
 And such remuneration shall be in lieu of all fees, whether between ' party and 
 party,' ' as between solicitor and client,' or 'between solicitor and client.'" 
 
 Only those who are strictly parties to the suit, properly represented by the 
 solicitor and entitled to costs out of the estate, can claim a share of the commission. 
 Incumbrancers made parties in the Master's office do not come within the rule. 
 
 Where one member of a class sufficiently represents the class, they should appear 
 by the same solicitor, Gorham v, Gorham, 17 Gr. 386. 
 
 The commission includes fees to counsel and stands in lieu of costs payable out 
 of the estate, but not costs ordered to be paid by one party to another. 
 
 Cases might arise where the commission would be an inadequate remuneration 
 for the work done, and in such cases the discretionary power of the Judge may be 
 exercised to order taxed costs under the former tariff. 
 
[266] 
 
 CHANCERY ORDERS. 
 
 ■^11 -i 
 
 N i ' 
 
 n 
 
 im 
 
 At the hearing on further directions in an administration suit in the County of 
 York, the Chancellor allowed the costs of the hearing over and above the commis- 
 Bion, re Field, the Chancellor, May 11th, 1881. 
 
 The principle upon which the commission is divisible is laid down in Dodge v. 
 Clapp, 8 P. R. 388. 
 
 The costs should be divided in proportion to the amount of the work done and 
 responsibility incurred by each solicitor. The question is open for discussion when 
 the report comes before a Judge in Chambers for review ; and in some cases the 
 question as to the proper distribution to be made has, by direction of the Judge, 
 been submitted to the Master in Ordinary. 
 
 As to revision of costs under the Judicature Act, see 0. L., r. 12 (a). 
 
 PBACTICE liNDER THE JUDICATUEE ACT. 
 
 The former practice as provided by the Chancery Orders, and given above, 
 remains in force (O. I., r. 3). But in cases where it was formerly necessary to file 
 a bill, the proceedings will now be commeiiced by writ (0. 1., r. 1). This writ must 
 have the various indorsements provided for by O. III., and especially one of those 
 given in the Forms, No. 9 (0. III., r. 6). If no appearance be entered, O. IX., r. 
 10 provides that the plaintiff shall be entitled to judgment upon prcecipe " on such 
 evidence (if any) and in such cases (as nearly as may be) as provided for by the 
 present practice of the Court of Chancery." As there was no practice in Chancery 
 by which an order for administration could be obtained upon pracipe, judgment 
 will have to be obtpined in some other way. If no other mode is open judgment 
 maybe obtained by motion to the Court (O. XXXVI., r. 1). If an appearance be 
 entered, unless there is some preliminary question to be tried, an order may be 
 made for the account claimed with all direction now usual in the Court of 
 Chancery (O. XI., r. 1). In other cases a statement o'. claim must be filed, unless 
 the defendant in his appearance states that he does not require its delivery, (0. 
 XVII., r. 1). For forms of statements of claim, see Forms, Nos. 39 & 41, which, 
 however, shew n^ ^ ,i.;8 which could not have been disposed of upon notice of motion 
 without an actiru, and are therefore useless except where the plaintiff has in ignor- 
 ance commenced his proceedings in the wrong way ; and for forms of statements of 
 defence, see Forms, Nos. 40 & 41i. The subsequent proceedings will be the same as 
 in any other action. The following provisions of the new rules must, however, be 
 noticed : — 
 
 (1) The form of a notice of motion is given in the Forms, No. 12. 
 
 (2) The form of a judgment by a local Master, Forms, No. 171. 
 
 (3) By O. XII. , r. 26, in any cause or matter for the administration of the estate 
 of a deceased person, no party other than the executor or administrator shall, unless 
 by leave of the Judge, be entitled to appear either in Court or in Chambers on the 
 claim of any person not a party to the cause against the estate of the deceased in 
 respect of any debt or liability. The Judge may direct any other party to the 
 cause to appear, either in addition to or in the place of the executor or administra- 
 tor, upon such terms as to costs or otherwise as he shall think fit. 
 
 (4) By O. XLV., r. 3, where an ord'.r has been made for the administration of 
 the assets of any testator or intestate, a Judge of any Division shall have power, 
 without any further consent, to order the transfer to such Division of any action 
 pending in any other Division by or against the executors or administrators of the 
 testator or intestate whose assets are being so administered. 
 
 _ (5) By O. XLVI., r. 8, where the trusts of any will or settlement are being ad- 
 ministered, and a sale is ordered of any property vested in the trustees of such will 
 or settlement upon trust for sale or witn power of sale by such trustees, the conduct 
 of such sale shall be given to such trustees, unless the Judge shall otherwise direct. 
 (6) By 0. L., r. 12 {a), every bill of coats in a suit pending in the Court of Chan- 
 cery at the commencement of the Act, every bill of costs in any action thereafter 
 brought in any Division of the High Court for the administration of an estate, or 
 for partition, or for the foreclosure, redemption or sale of mortgaged premises, and 
 every bill in any other action where the amount is to be paid out of an estate or 
 out of a fund in Court, or where the amount taxed ffects the interest of an infant, 
 shall be subject to revision according to the practice hitherto prevailing in the Court 
 of Chancery ; and the Orders of that Court numbered from 310 to 313 inclusive 
 shall in other respects be deemed applicable thereto. 
 
id down in Dodge 
 
 INDEX. 
 
 Note. — The figures within brackets refer to the lattei' portion of the book. 
 
 FAOK. 
 
 Abatement- 
 No plea or defence to be pleaded in 226 
 
 Action not to abate by death 355 
 
 Abortive Sale — 
 Foreclosure after 
 
 Absconding Debtor's Act— 
 
 Proceedings where defendant Jet in to defend under 11th section 
 
 [235] 
 
 126 
 
 Abstract op Title— 
 
 When to be delivered [204, 
 
 Objections to be answered in 14 days 204. 
 
 Master to determine all questions on 205^ 
 
 No report on abstract to be made 205 
 
 After abstract confirmed, no further objections thereto to be allowed |205^ 
 
 Abstract to be verified .205 
 
 Proceedings on objections to the title j206^ 
 
 Purchaser may verify when vendor refuses or neglects [206^ 
 
 Account — 
 
 Reference of questions of 95, 97 
 
 Indorsement of claim for 134 
 
 Inquiries and accounts, when Court may direct 292 
 
 When state of, changed in mortgage suit [2171 
 
 Account, Application for, Writ Indorsed under Order III., Rule 6— 
 
 Indorsement of claim for 
 
 When order for, on default of appearance 
 
 How made, and on what evidence , 
 
 Not to interfere with motions for administration or partition on notice 
 
 134 
 178 
 179 
 179 
 
 Accountant — * 
 
 To make annual return of " Account of Official Guardian " 
 
 On death, resignation or removal, property vested in, to vest in successor 
 
 When none, property to vest in officer appointed by Court 
 
 Property now in name of Accountant or lleferee to vest in Accountant. 
 Registrar, when to act as 
 
 Accountant's Office— 
 
 Funds in Court to bear expenses of office 
 
 Suitor's accounts in all the divisions to be consolidated 
 
 Common Law Procedure Act, sec. 121, to apply to accounts 
 
 Accountant's cheques to be countersigned 
 
 Chief clerk to initial, before presenting to Accountant 
 
 112 
 112 
 112 
 113 
 400 
 
 113 
 399 
 399 
 399 
 400 
 
M 
 
 m 
 
 :»S 
 
 [268] 
 
 INDEX. 
 
 II 
 
 ^f* 
 
 pxas. 
 
 Action— 
 
 "Action," meaning of 122 
 
 All 8uita to be by a proceeding called 125 
 
 Withdrawing 240 
 
 Address for Service— 
 
 Indorsement on writ 134, 136 
 
 Defendant on appearing to give ' 1^ 
 
 lliiii^ 
 
 '■s 
 
 -^■i . ill 
 
 in 
 
 ■ ' '' 
 
 t 
 
 
 Mi 
 
 Administration Suit— 
 
 Chancery general orders to apply to all the divisions 
 
 Executor only to appear on claims against estate 
 
 Order in, when obtained without bill filed. . 
 
 Who may apply for [238], l 
 
 Form ci notice for 
 
 Evidence upon motion for 
 
 Special directions may be given as to carriage of order 
 
 Notice to heirs and devisees necessary if inquiry as to real estate desired 
 Court may order inquiry as to real estate after mquiry as to personalty . 
 
 What accounts to be taken 
 
 Interest on debts and legacies, from what time computed 
 
 Creditors, how advertised for 
 
 Claims, ho-v sent in 
 
 Creditors not to make affidavit unless called on to do so 
 
 Securities held by creditors to be produced 
 
 Effect of refusal to produce 
 
 Claims to be examined by executor 
 
 Master may appoint person to examine with executor 
 
 Affidavit to be made of result 
 
 Master may postpone time for making 
 
 Creditors to be notified whether claims admitted or disputed 
 
 Form of notice . 
 
 Claims may be received after expiry of time limited 
 
 Solicitor to notify creditors when cheques for payment ready 
 
 Notices may be sent by post 
 
 Form of report 
 
 Application to local Master for order, when and by whom 
 
 How lilaster to proceed under such order 
 
 No money to be paid out of Court without order of Judge 
 
 Solicitors to receive commission instead of taxed costs 
 
 Where two or more suits, costs of suit unnecessarily prosecuted may be 
 
 disallowed 
 
 Parties plaintiffs 
 
 ' ' defendants 
 
 Application, how made 
 
 Material on motion 
 
 Formsoforder ....[262], 
 
 Proceedings in Master's office 
 
 What may be raised on motion to distribute 
 
 Realty to be sold, when 
 
 Further directions in 
 
 Commission to solicitors . 
 
 Practice in, under Judicature Act 
 
 126 
 212 
 238' 
 241 
 239' 
 240' 
 241' 
 241' 
 242' 
 242' 
 '242' 
 '242' 
 242 
 242' 
 f243 
 243' 
 '243' 
 243' 
 244" 
 245 
 245' 
 2461 
 '246 
 '240' 
 247' 
 251' 
 252 
 ['2521 
 252' 
 [256 
 
 ,257' 
 '259' 
 260' 
 261' 
 '261' 
 '263' 
 '263' 
 263' 
 [264' 
 265' 
 265' 
 266' 
 
 Administration — 
 
 Joining claims by or against 215 
 
 Action by or against on behalf of estate .... 186 
 
 Admissions— 
 
 In pleading, how to be made 228 
 
 Material allegations in pleading of opposite party to be admitted when 
 
 true 289,290 
 
 Party may be called on to admit documents 290 
 
 Costs where refusal to admit 290 
 
INDEX. 
 
 [269] 
 
 PAOB. 
 
 . 122 
 . 125 
 . 240 
 
 .134, 136 
 .. 163 
 
 .[238], 
 
 istate desired 
 ) personalty . 
 
 bd. 
 
 ly. 
 
 cuted may be 
 
 .[262], 
 
 126 
 212 
 
 238 
 '241 
 239' 
 240' 
 241 
 241' 
 242' 
 
 [242 
 242' 
 242' 
 242 
 242 
 243 
 2431 
 243' 
 '243' 
 244' 
 245' 
 245 
 246' 
 
 r246' 
 246' 
 247' 
 
 f25r 
 252' 
 
 r252' 
 252 
 
 r256 
 
 257 
 
 '259 
 
 260 
 
 261 
 
 '261 
 
 '263 
 
 '263' 
 
 263 
 
 264' 
 
 '265 
 
 2651 
 
 '266 
 
 215 
 185 
 
 228 
 
 Imitted when 
 
 289,290 
 
 290 
 
 290 
 
 PAGE. 
 
 Form of notice to admit 291, [20] 
 
 What sufHcient evidence of admission 291 
 
 Of service need not be verified 82 
 
 See "Master's Office." 
 
 Advertisement — 
 
 Service of writ by 149 
 
 For creditors . . - [242" 
 
 For creditors' heirs and next of kin .186 
 
 For sale of land, form of and proceedings on [200 
 
 Publication of [202 
 
 Misdescription in effect of [200], [237 
 
 Afi'idavit — 
 
 Evidence by 317 
 
 Commissioners to take 1 15 
 
 May be written or printed, or partly both 392 
 
 To be expressed in first person 396 
 
 How framed 396 
 
 To state description and abode of deponent 396 
 
 To be signed by deponent 396 
 
 Jurat where two or more deponents 396 
 
 Indorsement shewing on whose behalf filed 397 
 
 Interlineations or erasures authenticated 397 
 
 Where dcpolient illiterp.te 397 
 
 Original to be stamped before being used 397 
 
 Where original previously filed office c"py may be used 397 
 
 Of justification on appeal bond 81 
 
 Of service, form of 28 
 
 See "Evidence by affidavit." 
 
 Affirmamin— 
 
 " Oati ' includes , 
 
 Alimony— 
 
 When decreed by Court of Chancery . . , , 
 
 Evidence on motion for interim 
 
 Amount of 
 
 Order for may be registered 
 
 Writ of arrest may issue 
 
 Amount of bail on 
 
 No costs de die in diem beyond disbursements 
 Costs where plaintifiE fails 
 
 123 
 
 103 
 104 
 104 
 104 
 
 lot 
 
 105 
 105 
 105 
 
 Amendment — 
 
 Of writ of summons 129 
 
 Irregular proceedings generally 393, 399 
 
 Striking out parties 204 
 
 Of statement of claim when defendant added 205 
 
 No new ground of claim to be raised, or fact inconsistent with the 
 
 previous pleading to be alleged, except by way of 229 
 
 In County Court actions tried at Assizes 89 
 
 Amendment of Pleadings— 
 
 When allowed 246 
 
 Whatallowed 247 
 
 Material on motion for 248 
 
 Terms of order allowing .... 249 
 
 Costs occasioned by 249 
 
 Compulsory amendment .' 249 
 
 Where pleadings embarrassing 249 
 
 " " scandalous 250 
 
 Plaintiff may amend once without leave 251 
 
 Defendant may amend without leave 252 
 
\l\ 
 
 11 , 
 
 [270] 
 
 INDEX. 
 
 ' .1 
 
 !i 
 
 FAQK. 
 
 Motion to disallow amendments, when 252 
 
 Where amendment by one party, other may amend, when 253 
 
 Amendment by consent 263 
 
 When application for leave to amend ma^ be made 253 
 
 Amendment to be made within limited time after leave granted 254 
 
 " how made 254,256 
 
 Time within which amended pleading to be delivered 255 
 
 No amendment without leave while demurrer pending 262 
 
 See "Amendment," 
 
 Applal- 
 
 By one defendant, practice as to others 29, 30 
 
 None against consent order 69 
 
 Costs where Court equally divided. . . , 69 
 
 None as to costs when discretionary 69 
 
 Where motion to commit refused without costs 71, 72 
 
 Trustees' costs 71, 72 
 
 Mortgagees' costs 71, 72 
 
 Bankruptcy 71 
 
 Where no order except as to costs 72 
 
 Dismissal of bill without costs 72 
 
 (/osts, charges and expenses 72 
 
 To Court of Appeal, none without leave in certain cases 73, 74 
 
 Where title to real estate in question 73 
 
 Validity of patent 73 
 
 Value of subject matter $200 73, 74 
 
 Annual rent, etc., involved 
 
 Interlocutory orders 
 
 From Chamber orders 
 
 What cases may be appealed 73, 74, 76 
 
 Cases formerly appealable 76 
 
 None unless upon proper notice and giving security 76, 77 
 
 Extending time for appeal 77— -79 
 
 Time for and practice on 
 
 From County Courts 
 
 Original papers to be used 
 
 Transmission of papers 
 
 Entry for hearing 
 
 Printing of books 
 
 " " dates to appear 
 
 Notice of hearing 
 
 Service of papers 
 
 Costs . 
 
 73 
 75 
 76 
 
 79 
 83 
 83 
 83 
 83 
 83 
 84 
 83 
 83 
 83 
 
 Time, computation of 84 
 
 " for appealing from Master's Report [195], [229], [255 
 
 To be set down and seven days' notice given [265 
 
 To Divisional Court, from interlocutory orders, when allowed 7' 
 
 From Chamber orders « 76 
 
 See "Divisional Courts." 
 
 Appeal, Court of— 
 
 United with other Courts 19 
 
 Ex Officio Judges 21 
 
 Jurisdiction of 28, 29, 30 
 
 General Orders of , 79-86 
 
 May sit and act at any time and place 63 
 
 Sittings, vacation 84 
 
 Justices of, may act as Judges of High Court , 86 
 
 Single Judge may hear certain applications 8b 
 
 May sit in two Divisions 86 
 
 Security for costs to be by bond 80 
 
 Bond, form of 85 
 
 Stay of execution on , 80, 81 
 
 Two sureties in appeal bond 80 
 
 Affidavit of justification 81 
 
INDEX. 
 
 [271] 
 
 PAGE. 
 
 252 
 
 253 
 
 253 
 
 253 
 
 254 
 .■.■.■.■.■,"254, 256 
 
 255 
 
 , 262 
 
 29, 30 
 
 69 
 
 , 69 
 
 69 
 
 71,72 
 
 71, 72 
 
 71, 72 
 
 71 
 
 72 
 
 72 
 
 72 
 
 73, 74 
 
 73 
 
 73 
 
 73, 74 
 
 73 
 
 75 
 
 76 
 
 73,74,76 
 
 76 
 
 76, 77 
 
 77—79 
 
 79 
 
 83 
 
 83 
 
 83 
 
 83 
 
 83 
 
 84 
 
 83 
 
 83 
 
 83 
 
 84 
 
 ], [229], [2551 
 [255] 
 
 ■."."..".*. 76 
 
 19 
 
 21 
 
 28,29, 30 
 
 79-85 
 
 63 
 
 84 
 
 86 
 
 8b 
 
 86 
 
 80 
 
 85 
 
 80, 81 
 
 80 
 
 81 
 
 PAGE. 
 
 Affidavit, juatiiication, form of 85 
 
 Preparation of case for appeal , . . . 81 
 
 Beasons of appeal 81 
 
 Appeal books 81, 82 
 
 dates to appear 
 
 form 
 
 Cross-appeal not necessary 
 
 Appeal books to be deposited within 30 days 
 
 Entry for hearing 
 
 Court may direct service of notice on other parties . 
 
 Parties failing to appear . . 
 
 Interlocutory applications, how made 
 
 Admissions of service need not be verified 
 
 Costs 
 
 84 
 85 
 81 
 82 
 82 
 82 
 82 
 82 
 82 
 82 
 
 Settling certificate 82 
 
 Time, Computation of 84 
 
 Payment of money into and out of Court , 84 
 
 See "Appeal." 
 
 Appearance— 
 
 Writ of summons to state place for entering 137 
 
 By partners 143 
 
 Undertaking by solicitors 146 
 
 Time for entering , 128 
 
 Where service out of jurisdi'jtion 160 
 
 All proceedings to be in office from which writ issued, unless otherwise 
 
 ordered ... 162 
 
 How to be entered 162 
 
 Solicitor appearing to state place of business 163 
 
 Party appearing in person to state address and'place for service 163 
 
 Proceedings where no address , 163 
 
 Form of 163, [49] 
 
 To state if delivery of statement of claim not required 163 
 
 To be entered in procedure-book 1 54 
 
 Partners to appear by their individual names 144 
 
 Where firm consists of one person only 164 
 
 One memorandum to contain names of all defendants appearing by same 
 
 solicitor 164 
 
 Solicitor not appearing after undertaking liable to attachment 164 
 
 Defendant may appear at any time before judgment 165 
 
 If after time limited notice to be served 165 
 
 In suit for recovery of land, how person not a party may appear and 
 
 defend 165,166 
 
 Form of affidavit in such case 165, 166, [23] 
 
 Landlord appearing, to state that he appears as such 166 
 
 Defence may be limited to part of land in writ 166 
 
 In such case notice to be served 166 
 
 Form of notice 167, [15] 
 
 Defence may be limited to question of amount 167 
 
 Notice of disputing the amount to be served 167 
 
 Form of 167, [16] 
 
 See "Default of Appearance." 
 
 .91, 93, 96 
 
 Arbitea'^ion— 
 
 Reference to, not interfered with by new provisions. 
 See "Award." 
 
 Arbitrator— 
 
 Powers of, on reference 293 
 
 Assessors— 
 
 Court or Judge may call in aid of 97 
 
 
 % 
 
 
[272] 
 
 INDEX. 
 
 M--* :! 
 
 Vim 
 
 PAQB. 
 
 Assignment of choses in Action— 
 
 When validity of, disputed, debtor etc.. may interplead or pay money 
 
 into Court 50 
 
 Assizes— 
 
 Commissions of Assize may be issued. 
 
 64 
 
 Attachment— 
 
 Solicitor not appearing pursuant to undertaking, liable to 164 
 
 When judgment enforcable by 336 
 
 Under what circumstances issued 345 
 
 Leave of Court or Judge necessary 345 
 
 Attachment of Debts— 
 
 Order for, when made 348 
 
 What may be attached 349, 350 
 
 Effect of serving order for 351 
 
 Proceedings against garnishee 351 
 
 Where liability disputed 352 
 
 Where third party interested in debt 352 
 
 Payment by garnishee a valid discharge 353 
 
 Debt attachment book to be kept 353 
 
 Costs of application 354 
 
 Attorneys-at-Law — 
 See " Solicitors." 
 
 Audita Querela — 
 
 No proceeding by hereafter 
 
 343 
 
 Award 293 
 
 Setting aside 97 
 
 Court may refer back, 293 
 
 Where final judgment may be signed on 294 
 
 " !! 
 
 Bail— 
 
 Commissioners to take recognizances 115 
 
 Biddings— 
 
 See " Reserved Biddings." 
 
 Bills of Exception— 
 Abolished 
 
 Bills of Exchange— 
 Parties to actions on 
 
 398 
 
 184 
 
 Body Unincorporate or Corporate— 
 
 Service upon 153 
 
 Bond, Appeal — 
 See "Appeal." 
 
 Books— 
 
 See "Documents." 
 
 Breach op Covenant— 
 
 Court of Chancery may "xrant injunction against 
 
 May relieve against forfeiture for breach of covenant to insure . , 
 Indorsement where relief granted 
 
 .[105], 
 
 101] 
 106] 
 106] 
 
 if'' :.! 
 
r^ 
 
 FAQB. 
 
 \,y money 
 
 ^' 50 
 
 64 
 
 164 
 
 336 
 
 345 
 
 345 
 
 348 
 
 349, 350 
 
 351 
 
 351 
 
 352 
 
 352 
 
 353 
 
 353 
 
 354 
 
 343 
 
 293 
 
 97 
 293 
 294 
 
 115 
 
 184 
 
 153 
 
 e ....[105], 
 
 [101 
 106' 
 106' 
 
 INDEX. 
 
 Bdsiness op the Courts— 
 
 Distribution and arrangement of. 
 See "Pending Businesa." 
 
 [273] 
 
 PAoa. 
 .65, 66, 360 
 
 Cause — 
 
 Proceedings included in expression 122 
 
 Cause of Action— 
 
 Amendment of indorsement as to 129 
 
 Joinder of causes of action 212 
 
 Against defendant abroad 155, 160 
 
 Chambers— 
 
 Application at, in Toronto on notice, where not ex parte. 368 
 
 Form of order [681 
 
 Appeal from to be made by motion 36a 
 
 Within what time 368 
 
 Powers of Masters in Chambers 871 
 
 Official referee may sit in 372 
 
 Powers of County Court Judges in 372, 373 
 
 Applications to County Judge or Local Master to be by summons 374 
 
 Form of summons [62] 
 
 How prepared 374 
 
 County Judge or Master may refer to a Judge 374 
 
 Appeals from County Judge or Master 375 
 
 Master in Chambers, County Judge or Local Master may refer to a Judge. 374 
 
 Matter referred, how dealt with 375 
 
 Any party may appeal to a Judge 375 
 
 In what caaeo appeal will lie 376 
 
 Appeal by motion, and within what time 375 
 
 Papers to be transmitted 375 
 
 Appeal, no stay of proceedings, unless ordered 375 
 
 Costs of part^ appearing unnecessarily 385 
 
 See " Master in Cnambers," " County Court Judge," " Local Master." 
 
 Chambers, Master in— 
 
 jSiee " Master in Chambers." 
 
 Chancery, Court op— 
 
 United with other Courts 19 
 
 Newtitleof 20 
 
 Trial in 87,90 
 
 ' Exclusive jurisdiction 87, 90 
 
 Pending business in 404, 505 
 
 Act respecting R. S. 0., c. 40 [991 
 
 Jurisdiction of, generally [99], 100^ 
 
 In matters of revenue .100 
 
 As to alimony. <See "Alimony" : 103' 
 
 As to partition and sale. See " Partition " [106' 
 
 As to lunatics and their estates. See " Lunacy " [108] 
 
 As to wills and matters testamentary |102' 
 
 Where contention as to grant of probate '102' 
 
 As to infants and their estates. See " Infants " [116' 
 
 As to settled estates and special cases. See " Settled Estates and Special 
 
 Cases" [118 
 
 Under Act to prevent Trespasses to Public Lands [120] 
 
 Bules of decision in '100] 
 
 Judgment at law against equitable defence, bar to subsequent bill [lOO] 
 
 Waste, party in possession by adverse legal title may be restrained from 101] 
 
 Breach of covenant, contract, or agreement, injunction against [101] 
 
 Damages in addition to, or substitution for, injunction or specific perfor- 
 mance [^®^] 
 
 Undertaking as to damages when injunction granted [102] 
 
 S 
 
[27*] 
 
 INDEX. 
 
 Si ■■ 
 
 Relief against forfeiture for breach of covenant to insure [lOR], 
 
 Certificates of filing bills and of decrees may be registered [120], 
 
 Security for costs, when ordered. See '* Security for costs " 
 
 May make vesting orders. See " Trustee Acts " , 
 
 Evidence, purchaser may call for before accepting title 
 
 Suit may be revived for costs [122], 
 
 Costs when on lower scale. See *• Costs " 123' 
 
 FAOB. 
 
 106J 
 
 121 
 
 121 
 
 122 
 
 122 
 
 123 
 
 Heceivers, proceedings on appointment of, 
 Master's office, proceedings m. See " Mat 
 
 see "Receivers". 
 
 Master's Office " W 
 
 Proceedings under order tor sale. See "Sales " '199 
 
 Prooceedings as to title [204 
 
 See "Abstract of Title." 
 
 197 
 
 Chancery Division — 
 
 Actions from may be tried at separate time 
 
 302 
 
 Chanqk of Parties— 
 
 When action not to abate by 355 
 
 Death of sole defendant 356 
 
 Defendant dead at date of judgment 356 
 
 Liability of new plaintiff for costs ^^56 
 
 Dismissal in default of revivor 356 
 
 Assignment, creation, or devolution of estate pendente lite 357 
 
 Order to add party when necessary, how obtained 358 
 
 Service of order 358 
 
 Application to discharge or vary order 358, 359, 360 
 
 Indorsement on copy served 359, [18] 
 
 When served by publication . . 360 
 
 Chattel — 
 
 See "Detention of Chattel." 
 
 Chose in Action— 
 
 Assignment of, if validity disputed, debtor, etc., may interplead or pay 
 money into Court 
 
 Circuits— 
 
 Often as necessary 
 
 Separate lists at 
 
 50 
 
 91 
 91 
 
 Claim— 
 
 Indorsment of 129-134 
 
 Statement of 233-236 
 
 See "Statement of Claim." 
 Counter claim 34-44 
 
 See "Counter Claim." 
 
 Close op Pleadinos- 
 Rule as to 
 
 COHUENCEHENT OF ACT. 
 
 Commencement op Proceedings — 
 Generally as to 
 
 244 
 10 
 
 125 
 
 Commission- 
 
 Solicitors to receive, instead of costs in administration and partition suits [256 
 
 Commission to examine witnesses 31 
 
 Whengranted 313 
 
 Costs of 313 
 
 Name of proposed Commissioner to be stated in notice of motion for . . . 312 
 
 Opposite party may, on return of motion, name another 312 
 
 May be issued to persons proposed or ^o some others 314 
 
PAQB. 
 
 ....[IWI. 
 
 ....[120], 
 
 ;i06. 
 ,121, 
 121 
 122 
 122 
 '123' 
 123 
 '197' 
 
 'isr 
 
 199' 
 '204 
 
 ■.■.■.■.[122], 
 
 
 
 
 
 302 
 
 355 
 
 356 
 
 366 
 
 :i66 
 
 366 
 
 357 
 
 358 
 
 358 
 
 .358, 359, 360 
 
 359, [181 
 
 360 
 
 ad or pay 
 50 
 
 91 
 
 91 
 
 129-134 
 
 233-236 
 
 34-44 
 
 244 
 
 10 
 
 125 
 
 tition suits [256] 
 
 312 
 
 313 
 
 313 
 
 ,ioii for . . . 312 
 
 312 
 
 314 
 
 INDEX. [275] 
 
 PAOB. 
 
 What order for, to contain 314, 317 
 
 Examination under, how conducted 314 
 
 Interrogatories, when to be delivered 314 
 
 Examination may be ex parte, When 316 
 
 Notice of examination, how given 316 
 
 Witness refusing to part with documents produced 316 
 
 Witnesses to be examined under oath 316 
 
 Where witnesses do not understand English 316 
 
 Depositions, how taken , 316 
 
 Evidence, how returned 316 
 
 Where opposite party joins in 317 
 
 Trial to be stayed till commission returned 317 
 
 COHHISSIONBRS— 
 
 Power to administer oaths continued 
 
 CoHHisaioNS OF Assize, eto.— 
 
 May issue 
 
 To Judge of Provisional Judicial District of Algoma. 
 By Division Court Judge 
 
 116 
 
 64 
 66 
 
 66 
 
 Committee— 
 
 To be served for lunatic 152 
 
 Where none, guardian to be appointed 152 
 
 See "Lunacy." 
 
 Common Pleas, Court of — 
 United with other Courts 
 
 Common Pleas Division — 
 New title 
 
 19 
 
 20 
 
 71 
 
 Compromise of Action— 
 
 Power as to Counsel and Solicitors , , 
 
 Conditions of Sale— 
 See " Sales." 
 
 Confession of Defence — 
 
 Plaintiff may deliver 232 
 
 Form of [16] 
 
 Concurrent Writ of Summons— 
 
 When to be issued 138 
 
 For service out of jurisdiction with one for service within 139 
 
 Conflict between Law and Equity— 
 
 Merger 49, 50 
 
 Mortgagor in possession 50 
 
 Assignments of choses in action 50 
 
 Stipulations in contracts as to time, etc 51 
 
 Mandamus, injunctions, receivers 61, 58 
 
 Infants, custody and education 58, 62 
 
 All other matters 62 
 
 Changing solicitor 62 
 
 Consent Orders- 
 No appeal from 69, 70 
 
 Variation of 70 
 
 Powers of counsel and solicitors 71 
 
 Consolidation of Actions- 
 How effected 
 
 361 
 
i t 
 
 [276] 
 
 INDEX. 
 
 Constitution op Supbeme Court 
 
 FAOB. 
 
 19 
 
 Contract— 
 
 Stipulations as to time, etc. , where essence of 61 
 
 Implied, how to be stated in pleading 225 
 
 Bare denial of contract, to be aenial of the contract in fact, not of legality 
 
 or sufficiency 226 
 
 See "Breach of Contract." 
 
 Copies— 
 
 Of pleadings, only 4 allowed, exclusive of draft 222 
 
 If more than 3, to be printed 222 
 
 Party taking to pay solicitor of party producing 10 cents per folio 383 
 
 COBPOUATION — 
 
 Service of writ of summons on 153 
 
 Examination of officer of 278 
 
 Costs— 
 
 In appeal cases, etc., of defendant when plaintiff discontinues 240, 241 
 
 Where demurrer allowed 262 
 
 Where demurrer overruled 263 
 
 To be in discretion of the Court 376 
 
 I Kights of trustees, mortgagees and others to cottts out of particular fund 
 
 not aflfected 376 
 
 In action or issue tried by jury, coats to follow event 376, 377 
 
 Costs of reference 377 
 
 Security for costs . . 378 
 
 See ' ' Security for Costs. " 
 Fees payable in stamps to be those now payable in similar proceedings 
 
 in Queen's Bench and Common Pleas 382 
 
 Where no similar proceedings then those payable in Chancery 383 
 
 Of taking copies of documents 383 
 
 Where petition served with notice that costs of appearing will be objected 
 
 to, $5 to be tendered for perusing 383 
 
 Party paying to be allowed same in his costs 383 
 
 Of improper or unnecessary pleading, affidavit, etc 384 
 
 Where party receiving costs, liable to pay costs to any other party tax- 
 ing officer to tax and adjust same by set off or otherwise 384 
 
 Of party appearing unnecessarily 385 
 
 Of apijlication to extend time 395 
 
 Where plaintiff fails in County or Division Court through Court having 
 
 no jurisdiction 403 
 
 Abated suit may be revived for i^^^} 
 
 Where on lower scale in Chancery [123] 
 
 Taxation of, between solicitor and client. See " Solicitors." 
 
 Of proceedings under Trustee Act, 1847 [141] 
 
 Out of what fund payable [142], [170] 
 
 Of proving claims in Master's office [187] 
 
 Solicitors to receive a commission instead of costs in administration and 
 
 partition suits .^ [256] 
 
 See 'Taxing Officer's Revision of Taxation." 
 
 Council op Judges — 
 
 To meet annually to consider procedure and administration of justice . . 102 
 
 Countbr-Claim— 
 
 Provisions of Act 32, 33 
 
 What claims may be raised by 34-44 
 
 Distinction between, and notice to third party 36 
 
 " and defence 36 
 
 Between co-defendants 37 
 
 Not equal to plaintiff's claim 37 
 
INDEX. 
 
 [277] 
 
 i of legality 
 
 PAOE. 
 
 19 
 
 folio. 
 
 51 
 225 
 
 226 
 
 222 
 222 
 383 
 
 153 
 278 
 
 )s 240,241 
 
 262 
 
 263 
 
 376 
 
 ;iculnr fund 
 
 376 
 
 376,377 
 
 377 
 
 378 
 
 proceedings 
 
 •y 
 
 i be objected 
 
 • party tax- 
 •••••• ••. 
 
 !ourt having 
 
 [142], 
 
 stration and 
 
 of justice 
 
 382 
 383 
 383 
 
 383 
 383 
 384 
 
 884 
 385 
 395 
 
 403 
 [1221 
 [123] 
 
 141] 
 170] 
 187] 
 
 [256] 
 
 102 
 
 32,33 
 34-44 
 36 
 36 
 37 
 37 
 
 Must be in respect of a matter which would be the proper subject of an 
 action 
 
 Separate, joint plaintifTH 
 
 Must be againat plaintiff in same right 
 
 Where plaintiff, assignee of debt for specific performance, to claim for 
 account 
 
 Married woman defendant 
 
 Must seek relief against plaintiff 
 
 Inconsistent reliefs 
 
 Party added by, cannot counter-claim 
 
 Matters arising after action 
 
 Form of 
 
 " style of cause 
 
 Application to strike out 
 
 Order of examination of witnesses at trial 
 
 Plaintiff not prosecuting suit 
 
 Leave to file after time elapsed 
 
 Judgment 
 
 Costs 
 
 PAOB. 
 
 37 
 38 
 38 
 
 41, 
 
 38 
 38 
 38 
 39 
 39 
 39 
 40 
 40 
 41 
 41 
 41 
 41 
 41 
 42 
 
 Where cannot be conveniently disposed of in same action ... 42 
 
 " " " form of order thereon 44 
 
 '• " " some issues may be tried first 44 
 
 In County Court , 117 
 
 Countermand— 
 
 Of notice of trial , , 
 
 County Court— 
 
 County Court cases, when tried in Superior Courts 
 
 When Superior Court cases may be tried at 
 
 Procedure in such cases 
 
 Motions against verdict in such cases 
 
 Powers of amendment 
 
 Where actioamade a remanet 
 
 Reference by Judge 
 
 Certain books to be provided 
 
 Papers to be forwarded by County Court Clerks 
 
 Costs in such cases 
 
 Fees and charges 
 
 Sec. lof 32 v., c. 22, repealed 
 
 In cases within jurisdiction to grant relief, and give effect to every de- 
 fence, equitable or legal in like manner as High Court. 
 
 Where defence or counter-claim involves matter beyond jurisdiction . . . 
 
 High Court may order proceedings to be transferred 
 
 Bules of law enacted by Act to be in force in 
 
 Judges may make rules as to appeals from 
 
 Terms abolished 
 
 Days for April and October sittings 
 
 Power of Judges to »Jt at an\ i;ime 
 
 Costs where plaintiff fails through Court having no jurisdiction 
 
 Pleadings, practice and procedure of High Court to apply and extend to. . 
 
 County Court Judges- 
 
 To be Local Masters, when 
 
 To be " Local .Tudp:es of High Courts " for certain purposes . . . 
 Powers now in actions in Courts of Q. B. and C. P. continued 
 To have same power and authority as Master in Chambers . . . 
 
 Except in certain matters 
 
 Where there is a Local Master 
 
 No jurisdiction in action where writ issues in County of York. 
 
 No limitation of power to make ex parte orders 
 
 Application to, to be by summons 
 
 May refer any matter to a Judge 
 
 May sit at any time 
 
 See " Chambers, Application in." 
 
 88,89 
 
 88,89 
 
 88,89 
 
 89 
 
 89 
 
 90 
 
 90 
 
 90 
 
 90 
 
 90 
 
 90 
 
 116 
 
 117 
 117 
 118 
 119 
 100 
 403 
 403 
 403 
 403 
 403 
 
 106 
 116 
 116 
 372 
 372 
 373 
 373 
 373 
 374 
 374 
 403 
 
[278] 
 
 INDEX. 
 
 COUBT— 
 
 Powers of, with reipect to proceedings before referees 07 
 
 To exercise juriBdiction over solioiton llis 
 
 Books, papers, and documents of existing Courts, how dealt with 119 
 
 COCBT OB JUDOK— 
 
 Applications to 139 
 
 Meaning of words 139 
 
 CouBT Houses. 
 
 Prison and Asylum Inspection Act, extended to 121 
 
 Cbeditobs— 
 
 Claims of, how sent in and disposed of [242], [243] 
 
 Cbiminal Mattebs— 
 
 Practice or procedure in, not affected by Act 121 
 
 Rules do not apply to procedure in 402 
 
 Cbobs Relief — 
 Prior to Act 
 
 34 
 
 Custody op Infants— 
 See "Infants." 
 
 Dauages— 
 
 Assessment of, on default of appearance 172 
 
 On default of pleading 266, 267 
 
 Date— 
 
 Writ to be dated on dav of issue. 128 
 
 Concurrent writ, double date in 188 
 
 Pleadings to be marked with 223 
 
 Amended pleadings 266 
 
 Death— 
 
 Of party, its effect on action. 
 
 .386, 358 
 
 Debts— 
 
 Assignment of 50 
 
 Special indorsement on writ in action for debt . , 130, 170, 171, 235 
 
 Ordinary indorsement on writ in action for debt 133 
 
 Attachment of 346-354 
 
 I 
 
 DeOIiABATION— 
 
 "Oath" includes 
 
 123 
 
 Decbeb — 
 
 "Judgment " includes , 123 
 
 Deobetal Obdebs— 
 What are 
 
 Deed — 
 
 Equitable relief against. 
 
 80 
 32 
 
 Default— 
 
 Generally 269 
 
INDEX. 
 
 [279] 
 
 FAOT. 
 
 97 
 
 :v lis 
 
 ith 119 
 
 139 
 
 139 
 
 121 
 
 ....[242], [243] 
 
 121 
 
 402 
 
 34 
 
 172 
 
 266,267 
 
 128 
 
 138 
 
 223 
 
 265 
 
 355,368 
 
 • 60 
 
 30, 170, 171, 236 
 
 133 
 
 346-354 
 
 123 
 
 123 
 
 80 
 
 32 
 
 269 
 
 PAOB. 
 DCFAULT OF ApPEARANOK— 
 
 Proceedinfjs on, when defendant of unsound mind 168 
 
 Where infant defendant and official ^mardian haH not been served 169 
 
 Service to be proved before taking proceedings on default 170 
 
 Pr(X!eeding8 where writ specially indorsed 170 
 
 Proceedings where some only appear to specially indorsed writ 170 
 
 Wh«n plaintiff may sign final judgment on writ not specially indorsed. . 171 
 Where claim not for debt or liquidated demand only Interlocutory judg- 
 ment may be entered 172 
 
 Effect of, in action for recovery of land 172 
 
 Order for account, when made 178 
 
 Default of Pleading— 
 
 Plaintiff failing to deliver statement of claim 264 
 
 As to extending time 264, 265 
 
 Where defendant does not deliver defence or demurrer 266 
 
 Where several defendants, and one makes default 266, 267, 268 
 
 Where claim is for detention of goods and damages 266 
 
 Where for debt or liquidated demand and also for damages 267 
 
 In action for recovery of land 267 
 
 Where claim for mesne profits 267 
 
 In other actions 268 
 
 Where issues other than those between plaintiff and defendant 269 
 
 Judgment for default in pleading may be set aside on terms 269 
 
 Dkfenob— 
 
 Statement of, within what time to be delivered 236 
 
 Within what time, where statement of claim not required 237 
 
 Where defendant allowed to defend under Ord. X., r. 1 237 
 
 Where facts not admitted which ought to have been so, Court may make 
 
 order as to costs 237 
 
 Where defendant raises questions between himself and plaintiff with any 
 
 other person by counter-claim 238 
 
 Person, not a party, affected by defence or counter-claim, how served . . 238 
 
 Person so served to appear as if served with writ of summons 239 
 
 May deliver reply to counter-claim 239 
 
 Proceedings, where defence by counter-claim, should be disposed of by 
 
 independent action 239 
 
 Where, on set-off or counter-claim, balance is in favour of defendant. . . . 240 
 Court or Judge may allow defence or counter-claim to be withdrawn or 
 
 struck out 242 
 
 Defendants— 
 
 Joinder of defendants 183-197 
 
 Non-joinder, substitution and addition of 204-211 
 
 Bepresentative character to be shown on writ 130 
 
 Service of writ on 146-164 
 
 5ee "Service of Writ." 
 
 Out of jurisdiction, service on 155-161 
 
 New defendants, service on 205 
 
 Appearance by 162-168 
 
 See "Appearance." 
 
 Appearance b^ stranger in action for land, 166, 166 
 
 Service of notices on defendant who has not appeared 367 
 
 Freeing defendant from attending particular proceedings 183 
 
 Statement of defence 236-240 
 
 See " Defence, Statement of Defence." 
 
 Counter-claim by 32-44, 218, 238-240, 262 
 
 See "Counter-Claim." 
 
 Co-defendants, default in appearing or pleading by one of .170, 267-268 
 
 " Defendant," applicable to persons served witn process or notice of pro- 
 ceedings, or entitled to attend 123 
 
 Delitbrt of Pleadings— 
 
 Mode in general 223, 230 
 
 Where no appearance entered 223 
 
[280] 
 
 INDEX. 
 
 IrH!' 
 
 FAOB. 
 
 Dklivert, Writ of 336, 355 
 
 Dbmubrer— 
 
 Who may demur 255 
 
 What it shuU state 255 
 
 Form of 256, [48] 
 
 For multifariousness, 183 
 
 To any part of a pleading 257 
 
 After statement of defence 257 
 
 Joinder of issue and demurrer 257 
 
 To state some ground in law 258 
 
 Costs, where answer instead of demurrer 258 
 
 Within what time to be delivered 259 
 
 Demurrer and other pleading may be combined 259 
 
 Pleading and demurring t:) pame pleading, affidavit must be tiied 260 
 
 When leave given without such affidavit 260 
 
 Who may enter deiTiUrrer for argument. 261 
 
 Fiflfect of not enteiing for argument 261 
 
 No amendment without leave while demurrer pending 262 
 
 Costs where demurrer allowed 262 
 
 Where demurrer fails 263 
 
 Costs where overruled 263 
 
 How entered for argument 264, [52] 
 
 Depositions— 
 
 Mode of taking generally 310 
 
 Dkpott Clerk op the Crown— 
 
 To have seal of office 98 
 
 Writs and documents sealed with, to be received as evidence without 
 
 proof 98 
 
 Office of, and Deputy Registrar to be consolidated 107 
 
 Entitled to fees on examinations 106 
 
 May be commuted for fixed sum 106 
 
 DkPUI'T RFGldTRAR— 
 
 To have seal of office 98 
 
 To he appointed by Lieutenant-Governor 106 
 
 Writs and documents sealed with, to be received in evidence without 
 
 prooi 98 
 
 Office of, and Deputy Clerk of the Crown to be consolidated 107 
 
 County Court clerk to be, where County Judge is Local Master 107 
 
 To -ittend trial of actions from Chancery Division 303 
 
 Sam -i pov;,t»s as Registrar in issuing decree on precipe [258] 
 
 Decrees issued by, to be entered [259J 
 
 Detention of Goods— 
 
 Defarlt of appearance in action for 172 
 
 " pleading in 266,267 
 
 Delivery, writ of, in action for . . , , 336, 355 
 
 Lien claimed, depo.sit in Court 364 
 
 Disclosure as to Pauties — 
 
 By solicitors and plaintifiFs 139 
 
 Partn<^rs suing or sued as a firm 143, 199 
 
 DiSOONTINCANCE— 
 
 Plaintiff may discontinue when 240 
 
 Dfefendfvnt's costs where discontinuance 240, 241, 243 
 
 When leave of Court or Judge required 241 
 
 Discovery and Inspection — 
 
 FiXamination before trial :r ay be taken in short hand ^72 
 
 " atLaw 272 
 
INDEX. 
 
 [281] 
 
 FAQB. 
 
 336,355 
 
 266 
 
 255 
 
 256, [48] 
 
 183 
 
 257 
 
 257 
 
 257 
 
 258 
 
 258 
 
 259 
 
 259 
 
 ed 260 
 
 260 
 
 261 
 
 261 
 
 262 
 
 262 
 
 263 
 
 263 
 
 264, [62] 
 
 310 
 
 98 
 
 e without 
 
 98 
 
 107 
 
 106 
 
 106 
 
 98 
 
 106 
 
 ce without 
 
 98 
 
 107 
 
 5r 107 
 
 303 
 
 [258] 
 
 [2591 
 
 172 
 
 ..266, 267 
 
 336, 355 
 
 364 
 
 139 
 
 143, 199 
 
 240 
 
 ....240, 241, 243 
 241 
 
 '572 
 
 ... 272 
 
 PACK. 
 
 Examination in Chancery 273 
 
 Time for examination 273 
 
 Procedure to obtain 273 
 
 Parties to examination 273 
 
 Service of order for 274 
 
 Time for service 274 
 
 Where examination should take place 274 
 
 Non-attendance, consequences of 275 
 
 Subject matter of examination 276 
 
 Depositions as evidence 276 
 
 Examination on affidavit 277 
 
 Of officer of corporation 278 
 
 Where party out of jurisdiction 278 
 
 Costs of examination 278- 
 
 Produoti(m of documents may be ordered 279 
 
 Consequences of not complying' with 285 
 
 Unless sufficient reasons for requiring production or inspection, no costs 
 
 to be allowed 286 
 
 Forn\ of notice to produce 286, [19] 
 
 Proc eedings on receipt of notice 286 
 
 Form of notice of time when documents will be produced . . .286, [19] 
 
 Proceedings where party objects to give inspection 287 
 
 Conse( ices of failure to comply with order for diicovery or inspection. 288 
 
 Order discovery or inspection, how to be served 288 
 
 Solicitiii- neglecting to notify client liable to attachment 289 
 
 Party may at trial, on examination of opposite party, as evidence . ... 289 
 
 When ord.er of course may be obtained 279 
 
 Production by corporations 279, 285 
 
 Affidavit must be made although no documents 280 
 
 What must be produced 280 
 
 What documents are pi "'efcad 280,281,283 
 
 Privilege, how claimed , 281 
 
 Where third person interested 282 
 
 Place of production . . 283 
 
 Sealing up portions 284 
 
 Who may inspect 284 
 
 Charges upon inspection 284 
 
 Third party served by defendant is, for purposes of production and 
 
 examiii.ition, a defendant 284 
 
 Party for whose benefit action prosecuted or defended a party for purposes 
 
 of production and examination 284 
 
 Form of affidavit on production 285, [24] 
 
 Wheii notice to inspect may be tiven 285 
 
 Dismissal ok Action — 
 
 On default in delivering statement of claim 264 
 
 Non-api)earance of plaintiff at trial 304 
 
 Discontinuance 240 
 
 Judgment of non-suit 332 
 
 For failure to make discovery 288 
 
 I 
 
 DiBTKIBUTION OK BUSINESS 
 
 Sc- "Pending Business." 
 
 Division Coukts— 
 
 Judges ma, iake rules as to appeals from 
 
 Costs where plaintiH fails through Court having no jurisdiction 
 
 Divisional Couuts — 
 
 Business to be transacted by 
 
 Any number may sit at one time . . 
 
 Constitution of , 
 
 Any Judge of the High Court may sit in , . . . 
 
 Powers when oidy two Judges 
 
 President of 
 
 ,65, 66, 360 
 
 100 
 403 
 
 68 
 68 
 68 
 68 
 68 
 68 
 

 rt..: 
 
 £282] 
 
 INDEX. 
 
 PAGE. 
 69 
 
 Judgea required to sit in 
 
 Arrangements for holding .. .. W 
 
 Appeal from interlocutory orders where 76 
 
 From Chambers' orders 76 
 
 What proceedings and matters to be heard and determined before 398 
 
 Sittings of 400, 401 
 
 Divisions of thk High Codbt— 
 
 Generally IQ--?** 
 
 Document commencing proceedings to be marked with division 
 
 Bules of Court to provide for distribution of business among 6b 
 
 Documents— 
 
 Notice to admit 
 
 Discovery and inspection of '^ 
 
 Ste "Discovery and Inspection." 
 
 Trial by referees in cases re<iuiring long examination of 97 
 
 Delivering pleadings and other documents 223 
 
 
 Dominion Controverted Elections— 
 
 Practice or procedure in, or matters connected with, not affected by Act 
 
 121 
 
 Ejectment— 
 
 Local veni-'c re*:ained in actions of 297 
 
 See "Land, Action for." 
 
 Election Petitions — 
 Judges for trial of , 
 
 67 
 
 Entry op Judgment — 
 
 Judgment, by whom entered 329 
 
 Forms of 329, [791 
 
 Settling judgments 330 
 
 Speaking to Minutes 330 
 
 V ariation or correction of 330, 331, 334 
 
 Date of 331 
 
 Documents produced on, to be exp.niired by officer 331 
 
 When pursuant lo any order or certif.cft**, when suificient 332 
 
 Judgment of non-suit, effect of 332 
 
 Entry for Trial 
 
 Equity— 
 
 General provisions as to administ'-ation of, hy High Court 
 
 Claim of equitable relief to be allowed as by Court of Chancery 
 
 Defence on equitable g ounds to hp.ve effect as in Court of Chancery . . . 
 Equitable rights incidentally appearing to be tecognired as in Court of 
 
 Chancery 
 
 Defence on ground for injunction 
 
 Waste, equitable to be deemed also legal 
 
 Merger 
 
 Stipulations, not of the essence in equity, to have same effect in all Courts 
 
 Equity to prevail as to custody and education of infants 
 
 Conflicting with Common Law, is to prevail 
 
 Jurisdiction of County Courts in 
 
 Equitable Assignments- 
 
 Debtors, etc., may interplead or pay money into Court in certain cases. . 
 What are sufficient 
 
 302 
 
 30-62 
 31 
 32 
 
 32-44 
 
 44-47 
 
 48 
 
 49 
 
 51 
 
 58 
 
 62 
 
 117 
 
 60 
 
 Equitable Defences — 
 Prior to Act ...... 
 
PAGE. 
 
 69 
 . . 69 
 
 76 
 
 76 
 
 jre 398 
 
 400,401 
 
 19--'>'» 
 
 I 
 
 65 
 
 291 
 
 .. . i:72 -ri9 
 
 97 
 
 223 
 
 ed by Act 121 
 
 297 
 
 67 
 
 829 
 
 329, [791 
 
 .■;'.!!.'.!",! 330 
 ...,330,331,334 
 
 331 
 
 331 
 
 332 
 
 332 
 
 302 
 
 30-62 
 
 vy 31 
 
 ancery ... 32 
 in Court of 
 
 32-44 
 
 44-47 
 
 48 
 
 49 
 
 1 all Courts 51 
 
 58 
 
 62 
 
 117 
 
 ain cases . . 51 
 60 
 
 33 
 
 INDEX. 
 
 Equitable Issues— 
 
 To be tried without jury . 
 At same time as legal . . . . 
 
 [283] 
 
 PAGE. 
 
 88 
 90 
 
 Equitable Eights— 
 
 Relief in respect of 31-33, 44, 47 
 
 Erbor— 
 
 Proceedinijs in, abolished 398 
 
 Essence of Contract— 
 
 When stipulations are 51 
 
 Estates— 
 
 Representation of 185 
 
 Costs out of 376, 386, 387 
 
 Evidence- 
 To be taken viva voce 
 
 Affidavits, when allowed , 
 
 Deponents liable to cross-examination 
 
 Affidavits, what to state 
 
 Costs of unnecessary matter 
 
 Court may order examination upon oath, when 
 
 Evidei.ce de b ne esse 
 
 See "Commissions to Examine Witnesses," "Evidence by Affidavit. 
 
 310 
 310 
 310 
 311 
 311 
 311 
 312 
 
 Evidence by Affidavit — 
 
 Where parties con ent 317 
 
 Time for filing 317, 318 
 
 In rebuttal of deisndant's evidence 313 
 
 iJeponent liable t ) cross-examination 310, 319 
 
 Compelling attends ice for 320 
 
 Notice of motion f' c judgment where evidence by affidavit 320 
 
 Examination for Discovery 
 
 See "Discovery and Inspection." 
 
 Execution— 
 
 272 
 
 Stay of, upon unpeal 80, 81 
 
 Judgment for reoovery 'A money, how enforced 334 
 
 Time for issuing wi lbs of fi. fa 334 
 
 Sequestration 334 
 
 Judgment for payment of money into Court 336 
 
 For recovery or delivery of lancf, how entorced 336 
 
 For recovery of any property other than land 336 
 
 Requiring any act other than payment of money 336 
 
 Or to abstain from doing anything 336 
 
 "Writ of Execution," includes what 337 
 
 Leave to issue when necessary 337 
 
 When judgment against partnern 337 
 
 Praecipe for, what to contain 33S 
 
 Indorsements on writ 338 
 
 Date of writ 339 
 
 Directions to Sheriff to be indorsed 339 
 
 When \'rit may be sued o , 340, 341 
 
 How long to remain in force 340 
 
 How wi it lenewed 340 
 
 What sufficient evidence of renewal 341 
 
 How issued after six years have elapsed 341 
 
 Order of Court or Judge, how enforced 342 
 
 By person not a party - 342 
 
 N'o right heretofore existing to enforce a indgmont taken away 843 
 
 Order in which writs may issue not affected 343 
 
'p 
 
 J 
 
 1 
 
 '^'l 
 
 ' 
 
 
 [284] 
 
 INDEX. 
 
 VI ^ 
 
 FAQE. 
 
 I!-' = 
 
 Executors— 
 
 Joining claims by or against 215 
 
 Actions by, or against, on behalf of estate 185 
 
 Allowance to, by Court of Chancery [178] 
 
 By Surrogate Court [180* 
 
 EYccutor, may retain for his own debt, when '^^^J 
 
 May obtain order for administration [241] 
 
 Fact, Trial of Issuks— 
 
 In any action by different modes 298 
 
 Trial of irsues of fact generally 298-300 
 
 -See"Tria..' 
 
 Fees- 
 
 Foiyable in stamps 382 
 
 According to what tariff 382 
 
 Of Official Referees 106 
 
 Of Local Masters 107, 108 
 
 Officer paid by fees to make annual return 109 
 
 Fieri Facias— 
 
 Writs of 
 
 ,See" Execution." 
 
 Filing— 
 
 Delivering pleadings to include . 
 
 340 
 
 230 
 
 Final Judgment— 
 
 Plaintiff may sign on default of appearance to specially indorsed writ . . 170 
 
 Where several defendants, and some only make default 171 
 
 When plaintiff may sign on default of appearance to writ not specially 
 
 indorsed 171 
 
 When no appearance is limited, defence in action for recovery of land . . 17*? 
 Where claim for mesne profits on damages indorsed on writ for recovery 
 
 of land 173 
 
 Where action for foreclosure sale or redemption 173, 174 
 
 Where action for administration or partition 173 
 
 On award, when to be signed 294 
 
 Final Order— 
 
 See " Mortgage Suits." 
 
 Firm— 
 
 Action by or against 143, 153. 164, 199, 200, 337 
 
 Powtr to sue or be sued 199, 200 
 
 Disclosure of partners . 143 
 
 Service on 153 
 
 Appearance by 164 
 
 Execution against 337 
 
 Pobeolosure— 
 
 K>idenc" to obtain final order [230] 
 
 May III' opened [232] 
 
 After alwrtive sale [235] 
 
 Sfe " M()rt[,'age Suits." 
 
 FoREii^N Commission — 
 
 See " Comnnssion to Examine Witnesses " 
 
 FORKION COHPOKATION- 
 
 Actiou airaiust 
 
 .312-317 
 
 .163, 164 
 
PAGE. 
 
 215 
 
 185 
 
 [178] 
 
 '1801 
 
 ■x86j 
 
 241] 
 
 ,. 298 
 .298-300 
 
 .. 382 
 .. 382 
 .. 106 
 .107,108 
 .. 109 
 
 340 
 
 230 
 
 sed writ . . 170 
 
 171 
 
 it specially 
 
 171 
 
 ^ of land.. 17'? 
 jr recovery 
 
 173 
 
 173,174 
 
 173 
 
 294 
 
 164, 199, 200, 337 
 
 199, 200 
 
 143 
 
 153 
 
 164 
 
 337 
 
 230] 
 232] 
 235] 
 
 312-317 
 
 153,154 
 
 INDEX. 
 
 [285] 
 
 FAQB. 
 
 Foreign Country— 
 
 Action against defendant in 127, 1.55-161 
 
 Action against foreign corporation 153, 154 
 
 Forms— 
 
 Those in appendices to be used 402 
 
 May be varied or modified according to circumstances 402 
 
 Fraud— 
 
 Pleading necessary 228 
 
 Gaknishke — 
 
 Proceedings against 345, 353 
 
 See " Attachment of Debts." 
 
 
 Goons, Det.ntion of— 
 
 Default of appearance in action for 172 
 
 Default of pleading in 266, 267 
 
 Delivery, writ of, in action for 336, 355 
 
 Lien claimed, deposit in Court 364 
 
 Guaranty— 
 
 Notice to iJ^uarantor or co-guarantor 205-21 
 
 Guardian ad litem— 
 
 Appointment of L247] 
 
 When Master may appoint [250] 
 
 Guardian, Official 109-112 
 
 See "Official Guardian." 
 
 Guardianship of Infants- 
 See " Infants." 
 
 Hearing— 
 
 See "Trial." 
 
 High Court— 
 
 Constitution of 19-23 
 
 President of 20 
 
 Judges of ... 20 
 
 Saving of their powers 22, 23 
 
 Subsequent appointment of 20, 21 
 
 Oath of Judged 22 
 
 In a Superior Court of Record 23 
 
 Jurisdiction of 23-28 
 
 Courts whose jurisdiction is transferred ^ 19, 24 
 
 Pending business of abolished Courts 25, 26, 404 
 
 Equity and law, how to be administered by 30-62 
 
 Prohibition cannot issue to 44 
 
 Appeals from, in what cases . , 69-79 
 
 Procedure, failing special provision, to be same as in Court from which 
 
 jurisdiction transferren 27 
 
 Sittings may be at any time and place 63 
 
 Terms abolished 63 
 
 Vacations 64 
 
 Distribution of business 65 
 
 Pending business assigned to respective Courts 65 
 
 Officers of existing Courts 103 
 
 See "Officers," "Procedure," "Rules of Court." 
 
[286] 
 
 INDEX 
 
 i6, L»J 
 ]. [121 
 
 i, [in 
 
 14, I'W 
 
 !■: 
 
 PAGK. 
 
 Holidays— 
 
 When not reckoned in computation of time 393 
 
 Husband and Wife— 
 
 Joining claims by or againat, with separate claims 215 
 
 Action by or against wife 189 
 
 Marriage of party to action 355,358 
 
 Idiots— 
 
 -See "Lunacy." 
 
 Immediate Pbooeedings— 
 
 Power of Court or Judge to shorten time for any proceeding 395 
 
 Pressing applications during vacation to be provided for 64 
 
 Execution % 340 
 
 Indorsement op Claim — 
 
 Generally 129 
 
 Indorsement, what to contain 129 
 
 Various kinds of indorsements 130 
 
 Forms of indorsement 130, [3], [5] . 
 
 Where party sues, or is sued, in representative capacity 130 
 
 Special indorsement where recovery of debt or liquidated demand in 
 
 money on contract sought 130, [3], [51 
 
 Sufficiency of indorsements 131 
 
 Indorsing claim for interest 132 
 
 Special indorsement where claim for debt or liquidated demand only . .133, [5] 
 
 Indorsement in cvses of account, as partnership or trust 134, [10], ""^ " 
 
 Indorsement where action for foreclosure or sale 134, 
 
 Solicitor's name to be indorsed 134, 
 
 Effect of neglect to indorse name of solicitor 135 
 
 Plaintiff suing in person to indorse residence and occupation - . . 136 
 
 Where place for service to be indorsed 136 
 
 Where residence not indorsed or no place for service given, opposite party 
 
 may post up notices in office 136 
 
 AVliere one suing for himself and others 198 
 
 Indorsement— 
 
 D^ of service to be indorsed on writ 154 
 
 Affidavit of service to state day on which indorsement made 155 
 
 Infants— 
 
 Custody and odvication of, rules of Equity to prevail 68 
 
 Authority of father at Common Law 68 
 
 Statute, 12 Car. 2, c. 24 66 
 
 Previous conflict between Law and Equity 59 
 
 Manner of exercise of Equity jurisdiction . • 60 
 
 R. S. O., c. 130, cases thereunder 61-62 
 
 Sue by next friend , 188 
 
 Where two suits by different next friends 188 
 
 Wliere suit improperly instituted 188 
 
 Service on 150, 151 
 
 See "Official Guardian." 
 
 Default of appearance 169 
 
 Jurisdiction of Court of Chancery as to custody of [115^ 
 
 As to mortgaging, leasing or sellmg estates of [115], [248 
 
 When Court will order sale [116^ 
 
 No sale or other disposition against provisions of will or conveyance 
 
 under which infant entitled [117^ 
 
 Application for, how made, and proceedings on [117], [118], 248 
 
 Petition what to contain "248' 
 
 Infant if fourteen years of age must consent [117], .249' 
 
 Court may order some person to execute conveyance for infant [117^ 
 
PAQK. 
 
 .. 393 
 
 ,. 215 
 
 189 
 
 355, 358 
 
 395 
 
 64 
 
 340 
 
 129 
 
 129 
 
 130 
 
 ...130, [3], [5] 
 
 130 
 
 emand in 
 
 ..130, [3], [51 
 
 131 
 
 132 
 
 i oniy'.'.*133, [5 
 .134. [10], [12= 
 
 134, [ir 
 
 134, 1H5 
 
 i;« 
 
 X36 
 
 136 
 
 )8ite party 
 
 136 
 
 198 
 
 154 
 155 
 
 68 
 
 68 
 
 66 
 
 59 
 
 60 
 
 . . . 61-62 
 
 ... 188 
 
 ... 188 
 
 . . . 188 
 
 .150, 151 
 
 169 
 
 [115^ 
 
 ..,[115], [248' 
 
 [116- 
 
 )nveyance 
 
 "U7' 
 17], [118], [248;^ 
 2481 
 249 
 117 
 
 [117]. 
 
 INDEX. 
 
 [287] 
 
 PAGE. 
 
 Conveyance so executed valid . . [117] 
 
 Money arising from sale to be laid out as directed by the Court ^117] 
 
 Surplus to have same nature and character as estate disposed of [118] 
 
 Where estate subject to dower. Court may give gross sum in lieu of, or 
 
 annual payment [118 
 
 Guardians may be removed by the Court 118 
 
 When interested in settled estates 'll9 
 
 Guardians how apponited [247], 248 
 
 Service with O. C. decree, how effected 247 
 
 Evidence in support of application to sell or lease, how taken '249 
 
 Where day to shew cause reserved, notice to be served 249 
 
 Master to fix times for passing accounts [250 
 
 Information — 
 
 Signature to amendment of 125 
 
 Injunction— ♦ 
 
 Definition of 47 
 
 No proceeding to be restrained by 44 
 
 May be granted by interlocutory order 61 
 
 Although defendant in possession claiming title 52, [101] 
 
 When granted 55-56 
 
 Costs 56 
 
 Writ should be indorsed claiming 57 
 
 Against breach of covenant, contract, or agreement [101] 
 
 Damages in addition to, or substitution for ^101] 
 
 Undertaking as to damages when injunction granted [102] 
 
 No writ of, to issue 364 
 
 Judgment or order to have same effect aa , 364 
 
 Inquiries and Accounts— 
 
 When Court may direct 292 
 
 See ' ' Arbitrator, " ' ' Official Eef erees. " 
 
 iNaOLVENCY— 
 
 Claims of assignee as such, not to be joined with other claims. 
 
 216 
 
 Inspection— 
 
 Of documents 285-289 
 
 See ' ' Discovery and Inspec^'ion. " 
 Subject of litigation, inspectioa of 362 
 
 iNSPhrTOR OP Offices— 
 
 Lieutenant-Governor may appoint 113 
 
 Duties of 113, 114 
 
 May institute inquiries into official conduct of officers 114 
 
 Officers to produce books and documents for inspection by 1 14 
 
 Interest — 
 
 Indorsing claimi for 132 
 
 Execution for 339 
 
 Interlocutory Applications— 
 In appeal case?, how made . 
 To a single Judge 
 
 82 
 86 
 
 Interlocutory Judgment — 
 
 When ertered on default of appearance 172 
 
 On default of pleading 266 267 
 
 Interlocutory Orders— 
 
 What are 
 
 No appeal from, in certain cases 
 
 75 
 
 76 
 
Mi 
 
 f> 
 
 ; t 
 
 
 II 
 
 ■1 
 
 
 l! 
 
 1 
 
 jH 
 
 1; 
 
 : 
 
 
 1' 
 
 
 [288] INDEX. 
 
 PAGE. 
 
 Where order for preservation or custody of property, or payment into 
 
 Court will be made 362 
 
 Order for sale of perishable goods 3<j2 
 
 Order for detention, preaorvation or inspection of any property 362, 363 
 
 Application for, by whom, and how made 363 
 
 At what time 364 
 
 Party claiming to retain property by virtue of lien, or as security, pay- 
 ment into Court may ba ordered 364 
 
 Interlocutory Procbedings— 
 
 To be taken in Division to which action attached 66 
 
 Interpleader— 
 
 By debtor, trustee, etc., to whom notice is given that an assignment of 
 
 the debt is disputed 50 
 
 Procedure and practice 126 
 
 Application by defendant, when to be made 126 
 
 Interpretation— 
 
 Of certain words 122, 123 
 
 Intervening— 
 
 In action for land 165, 166 
 
 Irregularity- 
 
 Court may set aside proceedings as irregular, or amend 398, 399 
 
 Effect of non-compliance with rules , 398 
 
 Issues— 
 
 Various methods of disposing of 91 
 
 .See " Reference." 
 
 Where necessary, and how settled 245 
 
 Trial of issues of fact generally 298-300 
 
 Joinder of CAUSEfi of Action— 
 
 Several may be joined 212, 213 
 
 Separate trials may be ordered 212 
 
 What may be joined with action for recovery of land 214 
 
 What claims may, or may not be joined 215 
 
 Defendant may apply for order confining action to certain causes 216 
 
 Court or Judge may exclude any of the causes and amend stat<^ment of 
 
 claim or writ of summons 216 
 
 Joinder of Issue 244, 245 
 
 Joinder of Parties- 
 
 Generally 180-212 
 
 -See ''Parties." 
 Misjoinder of 201-202 
 
 See " Misjoinder of Parties." 
 
 Judges— 
 
 Meaning of "Judge " in orders 139, 404 
 
 To be called .Justices, 20 
 
 Appointment of 20 
 
 Who may be appointed 20 
 
 All to have equal jurisdiction 20, 21, 22 
 
 Titles, Precedence, etc., 20, 21 
 
 Ex officio of Court of Appeal 22 
 
 Oath of office 22 
 
 Powers and duties 22, 23 
 
 Not to i.^serve cases for Divisional Court 67 
 
PAOB. 
 
 , or payment into 
 
 ..... 362 
 
 :«i2 
 
 property 362, 363 
 
 . 363 
 
 364 
 
 r as security, pay- 
 
 364 
 
 66 
 
 i; an assignment of 
 
 50 
 
 126 
 
 126 
 
 122,123 
 
 165, 166 
 
 id 398,399 
 
 398 
 
 91 
 
 245 
 
 298-300 
 
 212, 213 
 
 212 
 
 214 
 
 215 
 
 rtaiii causes 216 
 
 amend stat'iment of 
 216 
 
 244,245 
 
 180-212 
 
 201-202 
 
 139,404 
 
 20 
 
 20 
 
 20 
 
 20,21,22 
 
 20, 21 
 
 22 
 
 22 
 
 22,23 
 
 67 
 
 INDEX, 
 
 When to be deemed to constitute a Court 
 
 [289] 
 
 FAOI. 
 
 68 
 121 
 
 Retiring or transferred to another Court, may give judgment within six 
 weeks 
 
 Judgment— 
 
 On what evidence obtained where writ specially indorsed 1 74, 175 
 
 What indorsements sufficient for 174 
 
 Who may make affidavit 174, 175 
 
 Where application for, to be made 175 
 
 Application, how answered 176,177 
 
 Direction of Court on application 176 
 
 Appeal from order 176 
 
 Forms of orders on [65], [66] 
 
 Forms of judgments on [81], [84] 
 
 Application for, to be on notice served two clear days 177 
 
 If defence applies to part only, plaintiff may have judgment for the rest 177 
 Where several defendants, one may be permitted to defend and judgment 
 
 signed tujainst the others .... 178 
 
 Leave to defend may be given unconditionally or on terms 178 
 
 Entering against separate estate of married women 196 
 
 Against partners 143 
 
 Subject to a condition or contingency, how enforced 337 
 
 Ather reference 96 
 
 Order of Court or Judge may be enforced in same manner as a judgment 342 
 
 Ma.v be given within 6 weeks by retiring Judge 121 
 
 See "Motion for Judgment, Entry of Judgment." 
 
 Judgment Debtor, Examination op- 
 No order necessary for 346 
 
 Where judgment against a corporation 847 
 
 Attendance for, how enforced , 348 
 
 See " Attachment of Debts." 
 
 Judgment, Motion fob 324 
 
 See " Motion for Judgment." 
 
 Jurisdiction op High Court 
 See "Judges." 
 In suits under £10 
 
 23,26 
 24 
 
 JURY- 
 
 What cases are to be tried by 87, 88 
 
 Notice for jury 88 
 
 Procedure in such case 88 
 
 Waiver of notice 88 
 
 Judge may requir9 a jury to sit 88 
 
 EfiFect of finding by Judge 88 
 
 Equitable issues to be tried without jury 88 
 
 Separate lists for jury and non-jury cases . 91 
 
 Jury fees in County Court cases tried at assizes 90 
 
 Just Allowances- 
 
 What are to mortgagee 
 
 [227] 
 
 LaN:1— 
 
 J oining claims in actions for recovery of 214 
 
 Service of writ in case of vacant possession 154 
 
 Appearance by person not named in writ 1 65, 166 
 
 Limiting defence 166, 167 
 
 Judgment by default of appearance 172 
 
 Statement of defence need not shew title unless, etc 227 
 
 Judgment for default of pleading 267 
 
 Writ of possession 336 
 
 T 
 
 iM 
 
 
[290] 
 
 INDEX. 
 
 PAOB. 
 
 Waste 48 
 
 Merger 49 
 
 Mortgage 50 
 
 Injunction against waste or trespass 61-66 
 
 Law— 
 
 All Courts to give e£fect to the rules of law enacted or declared 119 
 
 Amendments, etc.^ of law 30-62 
 
 Equity to prevail in case of conflict not specified , 62 
 
 Questions of law 294-297 
 
 See " Special Case." 
 Demurrer 255-264 
 
 Leave to Dbkend— 
 
 Claim for debt, specially indorsed 174-178 
 
 By one of several defendants 178 
 
 Unconditional, or on terms 178 
 
 When granted 175 
 
 LiKN— 
 
 Delivery of property subject to, on deposit in Court 
 
 Limitations, Statute of— 
 
 Express truKt and breach not barred aa between cestui que trust and 
 
 trustee , 
 
 Renewal of writ to save 
 
 Pleading necessary , 
 
 Lia Pemdens 
 
 364 
 
 48 
 144 
 228 
 
 145 
 
 Local Masters- 
 
 Lieutenant-Governor to appoint ., 107 
 
 One in each county or union of counties 105 
 
 To reside in the county 106 
 
 Fees of, may be commuted for fixed salary 107 
 
 Where receiving salary, fees in office to be paid by stamps 108 
 
 Where prohibited from practising 108 
 
 Judges of County Courts to be, when 105 
 
 May make order for administration [252' 
 
 How to proceed under such order [252^ 
 
 May make order for partition when [253^ 
 
 Lunacy— 
 
 II 
 
 What "Lunatic" includes 
 
 Jurisdiction of Court of Chancery as to lunatics and their property . . . 
 
 Proceedings where commission and inquisition thereupon 
 
 Limitation of time for traversing 
 
 How traverse tried 
 
 Court may require security from party traversing 
 
 Effect of failure to gi^ e security 
 
 New trial may be ordered 
 
 Inquisition without commission 
 
 Notice of application to be served 
 
 In such case no traverse, but new trial may be ordered 
 
 Lunatic to be produced if within jurisdiction 
 
 Court may dispense with his examine tion 
 
 What may be inquired into . . , 
 
 Court may declare lunatic on summary application 
 
 Committee, how appointed 
 
 Property, how protected 
 
 Committee must file inventory 
 
 Committee of estate must give security 
 
 Committee of the person gives no security 
 
 Proceedings in case of lunatic's death 
 
 108 
 108 
 108 
 108 
 108 
 100 
 109 
 109 
 110^ 
 110 
 110 
 110^ 
 119' 
 [111 
 111' 
 250' 
 111' 
 112 
 112' 
 112' 
 112' 
 
 im: 
 
 « 
 
INDEX. 
 
 [291J 
 
 FAan, 
 48 
 49 
 50 
 
 . 61-56 
 
 ,. 119 
 
 . 30-G2 
 
 62 
 
 294-297 
 
 trust and 
 
 255-264 
 
 174-178 
 .. 178 
 .. 178 
 .. 175 
 
 364 
 
 48 
 144 
 228 
 
 145 
 
 107 
 
 105 
 
 106 
 
 107 
 
 108 
 
 108 
 
 106 
 
 [252 
 
 [252] 
 
 [253' 
 
 
 108 
 108 
 '108 
 108 
 108 
 100 
 109 
 109 
 110 
 110' 
 110' 
 110' 
 119' 
 111 
 111 
 250 
 111 
 112 
 112 
 112 
 112 
 
 Mrty 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Proceedings where personal property inaufflcient to pay debts 
 
 Court may order mortgage, leaxe or sale of real estate 
 
 No preference in payment of debts 
 
 Where personal estate and rents insufficient for maintenance of lunatic 
 
 and his family, Court may mortgage, lease, or sell real estate 
 
 Surplus of same nature and character, as estate mortgaged, leased or sold. 
 Court may order conveyance by lunatic trustee 
 
 See "Trustee Acts." 
 
 Conveyanceu by Committee under direction of Court valid 
 
 Specific performance of contract by lunatic, when decreed 
 
 Order of single Judge may be re-heard 
 
 By whom Court may order costs to be paid 
 
 Master may fix times for passing accounts . . 
 
 PAOB. 
 
 113 
 113' 
 113' 
 
 114 
 
 114' 
 
 114; 
 
 115 
 116' 
 116' 
 
 rii6 
 
 250 
 
 Lunatic— 
 
 Jurisdiction over 26 
 
 Guardian ad litem to be appointed if no Committee 162 
 
 May sue by committee or next friend 216 
 
 May defend by committee or next friend 217 
 
 Jurisdiction of Court over 217 
 
 (See "Lunacy." 
 
 Mandamus— 
 
 May be granted by interlocutory order 61 
 
 Practice and decisions as to 62-66 
 
 Marriage— 
 
 Effect upon action of marriage of party 
 
 Married Women— 
 
 .356-368 
 
 149 
 
 Service of writ on 
 
 When they may sue or defend without their husbands, or without next 
 
 friends 189 
 
 Separate estate of 189 
 
 Creation of separate estate 189 
 
 Incidents of 190 
 
 Contracts affecting separate estate .... 190, 195 
 
 Nature of creditor's lien on 191 
 
 Ontario Statutes affecting 191, 192, 193 
 
 What property affected by these 194 
 
 B. S. O., c. 12), affects only separate estate in possession 194 
 
 Entering judgment against separate estate 196 
 
 Next friend of, must be friend of substance 197 
 
 Master in Chambers- 
 
 Powers and jurisdiction of 371, 372 
 
 Any official referee may sit with or for 372 
 
 May refer any matter to a Judge 374 
 
 See Chambers, Application in. 
 
 Master's Office— 
 
 Order of reference to be brought in within 14 days 
 
 Where delay in prosecuting, Master may change conduct of reference . . 
 
 References to be proceeded with on day fixed, and de die in diem 
 
 No adjournment merely to proceed with another reference 
 
 Warrant to consider to be issued 
 
 Master may dispense with 
 
 Proceedings upon warrant to consider 
 
 Solicitor may be appointed to represent a class 
 
 Master may make inquiries without special directions in order 
 
 May talie account wt»^li rests [184 
 
 Take account of ren 1 profits [184_ 
 
 Set occupation rent [184^ 
 
 181 
 181 
 AB2' 
 183 
 183' 
 183 
 183 
 184' 
 184 
 226 
 226 
 226 
 

 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 L^12.8 12.5 
 
 US 
 
 Hi 
 
 mm 
 
 Ui 
 
 12.0 
 
 
 ||I.25||||U ,.6 
 
 
 ^ 
 
 6" 
 
 ► 
 
 
 FholQgraphic 
 
 Sciences 
 
 Corporalion 
 
 # 
 
 ^\ 
 
 33 WKT MAIN STtllT 
 WIUTn,N.Y. MSM 
 
 {71»)i7?4'iO? 
 
 ^^^ 
 ^ 
 
 ^^ <^\ ^r\\ 
 
 ■■■■■MMiMM 
 

 V. 
 
 ^ 
 
 / 
 
 ^ 
 
[292] 
 
 INDEX. 
 
 PAGE. 
 
 Inquire as to repairs and improvements [184], 
 
 Msuce just allowances [184], 
 
 Report special circumstances 
 
 Witnesses may be examined before any examiner 
 
 Foreign Commissions may issue on Master's certificate 
 
 Haster may order production and inspection of books and papers 
 
 ?>.'->« au'/ertise for creditors^ heirs, and next of kin 
 
 Crt^ditors claims, how sent m 
 
 iow or disallow claims sent in 
 
 o ' proving claims, how disposed of 
 
 Ooj . _ . 
 
 As io oxecutijiTof conveyances, and delivery of deeds 
 
 Ac tunt.'^, form of, and how verified 
 
 IP' ':&» oi account, when prima facie evidence of contents 
 
 V G Htatas of facts, charges or discharges to be brought in 
 
 Copies, abstracts or extracts, when to be supplied 
 
 Party bound to obey Master's direction without a warrant 
 
 Day to be named for making admissions, or warrant issued 
 
 Costs of proving what should have been admitted 
 
 How such costs recovered 
 
 Surcharge where accounting party does not admit receipt of money .... 
 
 " Master's book " to be kept, and what it is to contain 
 
 Certificates of proceedings to be given 
 
 Master may dispense with proceedings ordinarily taken where unnecessary 
 
 Where different da^s appointed^ separate warrants not required 
 
 Consequence of deuiult on appomtment 
 
 Where persons not parties ought to attend, service of O. C. decree may be 
 directed 
 
 Rules as to proceedings in absence of certain parties and as to service on 
 them 
 
 Indorsement on 0. C. decree served 
 
 Party served may move to add to, vary, or set aside decree 
 
 No evidence to be received after hearing closed 
 
 Parties to raise before Master points which may be raised on appeal 
 
 Accounts and evidence not to be set out in reports 
 
 Schedule of sums found by report to bs given where moneys in Court 
 affected ... 
 
 Report to whom to be delivered out 
 
 Report when absolute 
 
 ' Duplicate may be filed 
 
 Appeal from report, how taken 
 
 Time for appealing [195], [229], 
 
 Clerical error in, how amended . . 
 
 Money to be made payable at some bank 
 
 To whose credit to be payable 
 
 What sufficient evidence of default • 
 
 Master may grant certificate closing reference where delay in prosecuting 
 
 Master may order payment of costs by party neglecting to attend ap- 
 pointment 
 
 May appoint guardian ad litem, when 
 
 May fix time for receiver, committee or guardian to pass accounts 
 
 See "Receivers," "Sale," "Mortgage Suits," "Administration Suits. 
 
 Master's Report— 
 
 Time for appealing from 
 
 Confirmation of 
 
 On sale, form of 
 
 I 'Ml 
 
 In adinmistration suits, form of 
 
 Appeal from within what time [195], [229], 
 
 Appeal to be set down and seven days' notice given 
 
 226 
 '227 
 
 ;i84] 
 
 185 
 185 
 155 
 186 
 242 
 186' 
 187 
 187 
 188 
 188 
 188' 
 188 
 188' 
 ri8!V 
 189 
 189 
 189 
 190 
 190 
 190 
 1911 
 *^191] 
 
 [191] 
 
 192 
 193 
 193 
 193 
 193 
 194; 
 
 194 
 194' 
 194' 
 196' 
 195' 
 255' 
 195' 
 196' 
 196" 
 197' 
 250: 
 
 250- 
 ,250' 
 '260' 
 
 .229, 
 [229] 
 202 
 261 
 265 
 265' 
 
 MZBOKH— 
 
 By operation of law, none where the beneficial interest would not be 
 
 deemed merged in Equity , 49 
 
 Mortgagee may take.release ofequity of redemption without merging debt 49 
 
icree may be 
 
 ;o service on 
 
 n appeal 
 
 eys in Court 
 
 [191] 
 
 192 
 ^193;, 
 193' 
 193' 
 193' 
 194 
 
 [195], [229], 
 
 194 
 194 
 194 
 1% 
 195 
 255'^ 
 195 
 196' 
 196' 
 ^197 
 
 prosecuting [230' 
 
 o attend ap- 
 
 '250 
 '260' 
 260' 
 
 ounts 
 
 tration Suita." 
 
 [195], [229], 
 
 uld not be 
 
 229 
 '229' 
 '202' 
 '261' 
 265 
 266 
 
 49 
 
 lerging debt 49 
 
 INDEX. [293] 
 
 t 
 
 PAoa. 
 
 Definition of ^ 
 
 And extinguishment, distinction . . 49 
 
 Intention governs construction ^ 
 
 Does " estate " include a charge ? ^ 
 
 Estates tail do not merge in reversion "0 
 
 Mkbne Profits— 178 
 
 MisJoiNUKE OF Parties—. 201, 202 
 
 Adding plaintiffs 202 
 
 When defendant may be added 202 
 
 Form of order adding 204 
 
 Month— 
 
 Means lunar month, where not otherwise expressed . 
 
 Mortgage Suits— 
 
 Sale may be ordered instead of foreclosure ..... ... 
 
 Surety may be made party and relief given against 
 
 Sale may be ordered without giving time to redeea [207], ,224 
 
 Deposit, where sale asked by mortgagor 
 
 Plaintiff may elect to give defendant conduct of sale 
 
 In such case deposit to be returned ■■ 
 
 Sale, how obtained by incumbrancer . [216], 
 
 Where cause heard pro confesso and no reference, what to be produced . . 
 Amount due may be determined without reference 
 
 Where infant defendant, order may be obtained in Chambers 208^ 
 
 Even if adult, also a defendant ,209 
 
 PrtBcipe decree, when plaintiff entitled to 173, 174, ,209 
 
 Evidence, necessary to obtain [210^ 
 
 Indorssment on bill 
 
 Must specify whether sale or foreclosure desired : * " : ■ 
 
 Parties interested in equity of redemption may be made parties in 
 
 Master's Office [210], [225^ 
 
 392 
 
 206 
 206 
 
 207 
 207 
 208 
 227 
 
 208' 
 223' 
 257' 
 223 
 223 
 210' 
 210 
 
 Prior mortgagee, party to bill, where relief sought against him 
 
 Decrees for foreclosure or sale, what to contain 
 
 Master to inquire as to incumbrancers 
 
 Certificates of Registrar and Sheriff to be produced ... 
 
 Subsequent incumbrancers, notice to [212], 
 
 May move to discharge notice -■■■ 
 
 Non-attendance of, equivalent to disclaimer 
 
 Master to take accounts, tax costs and fix time and place for payment 
 
 211 
 212 
 213 
 
 Final order of foreclosure or sale, how obtained [214], [215 
 
 Evidence to obtain '215^ 
 
 Time for payment may be enlarged [214' 
 
 Master to report names of parties made in his office and priorities 
 
 Proceedings on payment .* . .333, [214], 
 
 Subsequent accounts to be taken 
 
 Where sale ordered, how sold 
 
 Purchase money, how applied 
 
 Order for deficiency, when mortgagee entitled to 
 
 Proseedings where state of account changed [217], 
 
 Notice may be given, or order for new day obtained 
 
 On payment of arrears bill may be dismissed or proceedings stayed 
 
 How decree enforced on future default 
 
 Delivery of possession may be ordered [218], 
 
 No costs of aouble proceedings on mortgage 
 
 Proceedings in redemption suit against incumbrancers, when mortgagor 
 
 makes default 333, 
 
 As to parties plaintiffs [220], 
 
 As to parties defendants , [220], 
 
 Practice and procedure generally 
 
 As to arrears of interest 
 
 [211 
 ''211 
 224 
 224 
 224 
 212 
 '213 
 [213], 
 225' 
 230' 
 '230' 
 231' 
 214 
 •i29' 
 215' 
 216 
 216 
 216;^ 
 230' 
 217' 
 218' 
 218'^ 
 222 
 219 
 
 2191 
 
 221 
 
 221 
 
 221 
 
 222 
 
i 
 
 [294] 
 
 INDEX. 
 
 PAQB. 
 
 I 
 
 i m 
 
 Bight to call in principal 
 
 Proceedings by mortgagor for redemption 
 
 Disputing note, effect of 
 
 Costs in mortgage suits 
 
 Incumbrancer let in to prove after foreclosure 
 
 Redemption, times allowed for 
 
 What relief granted on praciae decree 
 
 Plaintiff's claim to be verifiea when service not personal 
 
 Indorsement, where immediate execution prayed 134, 
 
 Indorsement, when delivery of possession prayed . 134, 
 
 Every decree absolute in first instance 
 
 MOBTQAQOB— 
 
 In certain cases may sue for possession, rents and profits, trespass, etc. . 
 
 222 
 ^223' 
 223' 
 228 
 228' 
 228' 
 267' 
 257' 
 268 
 258 
 238 
 
 60 
 
 'f if 
 
 
 ii 'Si 
 
 Motion fob Jddgubnt— 
 
 Jud^ent to be obtained by motion for 324 
 
 Motion to set aside judgment may be made without leave reserved 324 
 
 Where no direction of a Court or Judge for entry of judgment 325 
 
 Where certain issues determined and trial of others unnecessary 325 
 
 None after expiry of one year 326 
 
 Powers of Court on 326 
 
 On admissions or documentary evidence 327-328 
 
 When Court may turn any application into 328 
 
 Whore Court may g^ive leave to make, after writ of summons served .... 329 
 
 Motion fob niw Tbial— 
 
 To be to a Divisional Court 321 
 
 To be by motion calling on opposite party to shew cause 321 
 
 Within what time to be made 322 
 
 Copy of order to be served 322 
 
 On what grounds new trial may be ordered ... , 323 
 
 Order to shew cause, a stay of proceedings 323 
 
 Counsel making application to oegin 323 
 
 Powers of Court on 326 
 
 Motions— 
 
 Applications to Court or Judge to be by motion 365 
 
 No rule or order to shew cause to be granted 366 
 
 No motion without previous notice to opposite party 366 
 
 Court or Judge may in proper case make order ex parte 366 
 
 Two clear days between service and day for hearing motion 366 
 
 Where all parties interested not served, Court may dismiss or adjourn 
 
 motion ■ 367 
 
 Court may adjourn any motion 367 
 
 No leave necessary to serve defendant who has not appeared to writ of 
 
 summons 367 
 
 Court may give leave to serve notice of motion with writ of summons, or 
 
 before time for appearance 367 
 
 Notice of motion for injunction may be served without leave 367 
 
 MCLTIFABIOUBNEBS— 
 
 Demurrer for.... 
 
 N«W ASSIONMBNT— 
 
 Amendment substituted therefor 
 
 Nbw Tbiai.— 
 
 Motion for, generally 
 
 183 
 
 227 
 
 .321-323 
 
 New Tbustbbb— 
 
 Court may appoint C'^^] 
 
 Cases in wliioh it will do so [162j 
 
INDEX. 
 
 [295] 
 
 .134, 
 .134, 
 
 ss, etc. 
 
 PAQB. 
 
 [222] 
 [223 
 [223;. 
 2281 
 228 
 228 
 267 
 "257 
 258 
 258 
 238 
 
 60 
 
 , 324 
 
 ed 324 
 
 325 
 
 325 
 
 326 
 
 326 
 
 ....327-328 
 
 ^ ;•... 328 
 
 rved.... 329 
 
 321 
 
 321 
 
 322 
 
 322 
 
 323 
 
 323 
 
 323 
 
 • • • . • • . 326 
 
 365 
 
 366 
 
 366 
 
 366 
 
 . 366 
 
 adjourn 
 
 867 
 
 367 
 
 writ of 
 
 367 
 
 nons, or 
 
 367 
 
 367 
 
 183 
 
 227 
 
 321-323 
 
 [1621 
 
 [162J 
 
 PAoa. 
 
 Principles which guide discretion of the Court [163^ 
 
 Who may, or may not, be appointed ,163^ 
 
 Powers of new trustees ,164; 
 
 Cnjrt may vest lands in ,164; 
 
 May vest right to sue, or call for transfer of stock 165; 
 
 Old trustees not discharged from liability r<(^V 
 
 Who may apply for appointment of ;i66; 
 
 May apply by petition ;i66' 
 
 What may be done on petition ;i66; 
 
 May be dismissed with or without coats ;i67 
 
 Court may make order in a cause [167 
 
 Orders founded on certain allegations to be conclusive evidence of mat- 
 ters contained in such allegations 
 
 Court may exercise powers in case of trustees of charities 
 
 May appoint new trustees in place of persons convicted of felony 
 
 May appoint, where coexisting trustees 
 
 167 
 168 
 176 
 176 
 
 Next Fribnd— 
 
 Infants sue by 188 
 
 Not to be added without consent 206 
 
 Of married women must be person of substance 197 
 
 NiFissiNo, District op— 
 
 Justice of the Peace in, need not be resident or possess property 121 
 
 Non-Compliance with Rules— 
 
 Effect of 398 
 
 Court may set aside irregular proceedings or amend on terms 398, 399 
 
 Non-Suit— 
 
 Effect of 332 
 
 Notices— 
 
 Writing generally required 392 
 
 Judge may authorize oral notice 392 
 
 Service of, before appearance 367 
 
 , In lieu of service of writ 127, 161 
 
 Limiting appearance in action for land 166 
 
 Of disputing amount 167 
 
 Appearance after time, notice of 165 
 
 Inspection, notice to produce for 286 
 
 Notice, to admit 290, 291 
 
 Admission, notice of 289 
 
 Of trial 298,301,302 
 
 Of countermand - 298 
 
 Third party, notice to 33,204-211 
 
 Notice in Lieu of Service— 
 
 Form of 127, [2] 
 
 To be served in same manner as writ of summons 161 
 
 Notice op Disputing Amount— 
 
 Questions which can be raised under 
 .Ste "Mortgage Suits." 
 
 Oaths— 
 
 167.168 
 
 Commissioners to take, continued 116 
 
 " Oath," includes affirmation and declaration 123 
 
 Judges' oaths 22 
 
 Officers' oaths 104 
 
[296] INDBX. 
 
 li 
 
 PAoa. 
 
 OrriOEBS— 
 
 Officers of existing Courts attached to their respective divisions 103 
 
 Masters in Chancery and Taxing Officers attached to Supreme Court. . . 103 
 
 Doubt as to position of officer to be determined by Rule of Court 103 
 
 Lieutenant-Uovemor may change official names and regulate duties of 
 
 officers 103 
 
 When Court or Judges may remove officer 104 
 
 Subject to Order in Council, rules of Court may distribute business 
 
 among 104 
 
 Existing securities given by, continued 104 
 
 Oath to be taken before entering on duties 104 
 
 Before whom taken 105 
 
 Authority of certain officers preserved 105 
 
 Paid by, fees to make annual return 109 
 
 See " Inspector." 
 
 Officers to be auxiliarjr to one another 369 
 
 Judgment Clerks, duties of 369 
 
 Deputy Clerks of tho Crown and Deputy Registrars, powers and 
 
 duties of 369 
 
 See " Deputy Clerks of the Crown," "Deputy Regiatrai-s." 
 
 What orders to be entered at Toronto 370 
 
 Master in Chambers, powers and jurisdiction of 371, 372 
 
 Official Guardian— 
 
 Lieutenant-Grovemor to appoint 109 
 
 Duties cf 109,111 
 
 Costs heretofore paid Guardian to be paid into Court 110 
 
 Where estate small Court may dispense with 110 
 
 To be pa.'^ iixed salary 110 
 
 Order determining to be laid before Assembly 119 
 
 Surplus to be transferred to Suitors Fee Fund Account 110 
 
 Solicitor emfiloyed by Guardian entitled to costs . . . . Ill 
 
 Affidavit verifying amount received to be filed every six months Ill 
 
 New Guardian, on appointment, to receive books and papers from pre- 
 decessor Ill 
 
 May be restrained from practising Ill 
 
 Accountant to make annual return of Guardian's account 112 
 
 Service of writ on, for infants 150, 151 
 
 Party interested may move to appoint another Guardian 151 
 
 Where default of appearance by person of unsound mind or infant, and 
 
 Guardian has been served 168, 169 
 
 Official Rkfbrkes— ' 
 
 Reference to, of questions arising in actions 91 
 
 Are officers of the Court 98 
 
 What officers are referees 106 
 
 Additional, may be appointed 106 
 
 Court or Judge may order questions or issue of fact, or question of ac- 
 
 count to be tried before 97 
 
 Not in a criminal proceeding by the Crown .... 97 
 
 When consent of parties necessary 97 
 
 Trial before, how conducted 98 
 
 Report, unless set aside, equivalent to a verdict 98 
 
 Powers of Court or Judge with respect to proceedings before. 98 
 
 Where receiving salary, fees on proceedings before, to be paid in stamps. 106 
 
 Powers of, on reference . 292,293,308 
 
 See "Trial." 
 
 May sit with, or for Master in Chambers 372 
 
 0bdkr8— 
 
 May be enforced as judgments 342 
 
 When in favour of person not a party 342 
 
 Requiring entry, to be entered at Toronto 369 
 
INDEX. 
 
 [297] 
 
 103 
 
 Court... 103 
 
 rt 103 
 
 duties of 
 
 103 
 
 104 
 
 busineBS 
 
 104 
 
 104 
 
 • • • • • • • JvV 
 
 106 
 
 106 
 
 109 
 
 369 
 
 369 
 
 v^ers and 
 369 
 
 370 
 
 371,372 
 
 109 
 
 109,111 
 
 110 
 
 110 
 
 110 
 
 119 
 
 110 
 
 Ill 
 
 18 Ill 
 
 from pre- 
 
 Ill 
 
 Ill 
 
 112 
 
 180,151 
 
 151 
 
 fant, and 
 168,169 
 
 91 
 
 98 
 
 106 
 
 106 
 
 on of ao- 
 97 
 
 ' • • • ■ • • ■ • 9% 
 
 97 
 
 98 
 
 98 
 
 98 
 
 1 stamps. 106 
 ...292,293,308 
 
 372 
 
 342 
 
 342 
 
 369 
 
 PAOE. 
 
 Papef-^ 
 
 To be of foolscap size 392 
 
 Particulars— 
 
 Special indorsement of particulars of debt 131 
 
 Of debt not specially indorsed 171 
 
 Parties— 
 
 Plaintiffs who may be joined as .180, 181 
 
 Casts of defendant where perijons not entitled to relief joined as plaintiffs 180 
 
 Court may substitute or aidd other persons as plaintiffs 182 
 
 Defendants who may be joined as 183 
 
 Not necessary that every defendant should be interested as to all the 
 
 relief prayed 183 
 
 Defendant '.ot to be embarrassed by proceedings in which he has no in- 
 terest 183 
 
 All persons severally or jointly and severally liable on one contract may 
 
 oe joined as defendants 184 
 
 Where doubt exists, several defendants may be joined to determine which 
 
 liable 186 
 
 Trustees, executors, and administrators may sue and be sued without 
 
 joining parties beneficially interested 185 
 
 Where breach of trust charged 187 
 
 Infants sue by next friend 188 
 
 Where parties numerous one or more may sue or defend for benefit of all. 197 
 
 How far persons not parties bound by proceedings 197 
 
 Where rights of a class depend on construction of an instrument Court 
 may appoint one or more to represent, before inquiring as to indivi- 
 duals comiKtsing the class 199 
 
 Co-partners may sue or be sued in name of firm . . , 199, 200 
 
 Chancery Orders as to parties, in force 200 
 
 Oases in which defendant cannot object for want of parties 200 
 
 Misjoinder not to defeat action ! 201 
 
 Court or Judge may at anv stage strike out 204 
 
 No plaintiff, or next friend of plaintiff, to be added without consent. . . . 204 
 
 Defendants added, how served 204 
 
 When application to add, strike out, or substitute, may be made 205 
 
 Where defendant added, amended writ to be sued out 205 
 
 Where question arises, not only between plaintiff and defendant, but be- 
 tween them and other persons, order may be made for having ques- 
 tion determined 205 
 
 Where defendant entitled to contribution, indemnity, or relief over 
 
 against any other person, order may be made 205 
 
 Cases where rule does, or does not apply 206, 207, 208 
 
 Third party may move to discharge or vary order 209 
 
 Costs on determination of such question 209 
 
 Where defendant entitled to contribution, indemnity or relief from per- 
 son not a party 210 
 
 Court may order plaintiff to give notice to person against whom relief 
 
 sought 210 
 
 If party served disputes the claim appearance be entered 211 
 
 Court to direct mode of having question determined 211 
 
 Court may give liberty to defend on terms 211 
 
 Plaintiff not to be delayed by questions between defendants 211 
 
 Service of notice of judgment on infant or person of unsound mind, to 
 
 bind him, to be effected in same manner as of writ of summons 211 
 
 Who to appear in administration suits in claims against estate 212 
 
 Master may order service of O. C. decree on persons not parties C^^^l 
 
 Rules ai to parties and service on persons not parties [192] 
 
 Partition— 
 
 Jurisdiction of Court of Chancery .. . [106], [W 
 
 Costs on suits for [107 
 
 Allowance for improvements, when made [107 
 
I 
 
 1 
 
 I 
 
 'IH'' 
 
 
 f 
 
 
 
 ■ V 
 
 
 
 . .' T ■ 
 
 
 
 ||:. ■: 
 
 
 
 11- 
 
 1 
 
 [298] 
 
 INDEX. 
 
 Effect of deed to carry out decree rr 
 
 Office copy decree or report, evidence of the several holdings and shares. 
 
 Local Master may make oraer for 
 
 No money to be paid out of Court without order of Judge 
 
 Order in Chambers where other lands discovered 
 
 Where orders made in diflFer ent counties, then application in Chambers 
 
 as to conduct of proceedings 
 
 Solicitors to receive commission instead of taxed costs 
 
 PAoa. 
 
 [107 
 [107' 
 [253 
 [2M' 
 t254; 
 
 [254] 
 M 
 
 Partnekship— 
 
 Writ issued in name of, on demand, names and residences of members to 
 
 be given 143 
 
 Action how to proceed thereafter 143 
 
 Service on partners 143, 153 
 
 Appearance by partners 143, 164 
 
 Partners parties to actions 143, 199, 200 
 
 Execution or judgment against 143, 3:i7, 338 
 
 Pathknt into Court— 
 
 Money how paid in generally. ...... [196], [204], [231], [235] 
 
 When defendant may pay into Court in satisfaction 270 
 
 How paid in 270 
 
 ». Notice to be served 271 
 
 How paid out to plaintiff 2i 1 
 
 When plaintiff accepts amount paid in satisfaction 271, [18] 
 
 Payment in, in appeal case 84 
 
 See" Accountant's Office." 
 
 Patubnt out op Court — 
 
 How paid out generally 399, 400, [231] 
 
 No money to be distributed or paid for costs except on order of Court or 
 
 Judge 374 
 
 Except money paid by way of satisf^tion or amends and not belonging 
 
 to infant or /em«c<wert 374 
 
 Where order for administration or partition made by Local Master. [252], [2541 
 
 In appeal case 84 
 
 See " Accountant's Office. 
 
 PiNDiNO BuaiNEsa— 
 
 Generally 25,26 
 
 When to be continued according to ordinary course of High Cour 26, 404 
 
 When to be continued according to practice of Court in which brought. .26, 404 
 
 In Court of Chancery 26, 404 
 
 Special application in Chambers as to 26, 406 
 
 PiBSONs OF Unbound Mind— 
 &e "Lunatic," "Lunacy." 
 
 Plaintiffs— 
 
 Joining plaintiffs, liberty as to 180, 215 
 
 Substitution or addition of 182 
 
 Indorsement of address, when suing in person 136 
 
 "Plaintiff" applicable to every person asking relief otherwise than by 
 
 way of counter-claim as a delendant 123 
 
 Pleading— 
 
 Rules substituted for those heretofore in use 217 
 
 Plaintiff to deliver statement of claim 218 
 
 Within what time 233 
 
 Defendant to deliver statement of defence, set-off or counter-claim .... 218 
 
 Within what time 236 
 
 Plaintiff to deliver reply ..- 243 
 
 Statements to be brief 219 
 
 Costs where unnecessary prolixity 219 
 
d shares. 
 
 bambers 
 
 FAOM. 
 .rr [107 
 
 107 
 [253 
 [2541 
 t2M 
 
 [2541 
 [26«j 
 
 mbers to 
 
 143 
 
 143 
 
 143,163 
 
 143,164 
 
 .143, 199, 200 
 .143, 3;J7, 338 
 
 i], [231], [2351 
 
 ..!".'.". 270 
 
 271 
 
 2'.1 
 
 ....271, [18] 
 84 
 
 399, 400, [231] 
 Court or 
 
 374 
 
 lelonging 
 
 374 
 
 or. [252], [264 
 
 25,26 
 
 ir 26,404 
 
 pought...2«,404 
 
 26,404 
 
 26,406 
 
 180,216 
 
 182 
 
 136 
 
 than by 
 123 
 
 217 
 
 218 
 
 233 
 
 im .... 218 
 
 • • • • • « • ^OO 
 
 243 
 
 219 
 
 219 
 
 INDEX. 
 
 [299] 
 
 PAQB. 
 
 Defendant may set up by counter-claim any right or claim, whether 
 
 sounding in damages or not 
 
 See "Counter-claim." 
 
 Every pleading to contain concise statement of material facts . . . 220 
 
 What pleadinu^H should contain 221 
 
 May be printed or written, or partlv printed and partly written 223 
 
 Only 4 copies allowed exclusive of draft 222 
 
 To be printed if more than 3 copies 222 
 
 How delivered 228 
 
 Relief claimed to be specifically stated 223 
 
 General relief may also be prayed 223 
 
 Distinct claims or causes of complaint to be stated separately and dis- 
 tinctly 224 
 
 Contents of any document, how to be stated 224 
 
 Malice, fraudulent intention, or knowledge, how to be stated 224 
 
 Notice to be alleged as a fact, unless form or precise terms material .... 224 
 
 Implied contract, how to be stated 225 
 
 Matter of fact which law presumes in favour of pleader need not be 
 
 alleged unless it has been specifically denied 225 
 
 When right of any other party must be specifically denied 226 
 
 Bare denial of contract to be denial of the contract in fact not of legality 
 
 or sufficiency 226 
 
 No plea or defence to be pleaded in abatement 226 
 
 No new assignment to be necessary or used 227 
 
 Amendment substituted therefor 227 
 
 Defendant in possession need not plead title 227 
 
 If defence depends on equitable estate against title asserted by plaintiff, 
 
 should plead it 227 
 
 Plea of not guilty by Statute not affected by rules 227 
 
 Admissions how to oe made 228 
 
 Facts relied on, not appearing in previous pleading to be alleged 228 
 
 Grounds of defence or reply which would take opposite party by sur- 
 prise, or raise new issues to be alleged 228 
 
 Silence of a pleading no admission of facts in pleading of opposite party. 229 
 No new ground of claim to be raised, or fact inconsistent with previous 
 
 pleading to be alleged except by way of amendment 229 
 
 Delivering any pleading or proceeding includes filing 230 
 
 Mattsbs Arising Pendinq the Action — 
 
 Ground of defence arising after action brought, how pleaded 239 
 
 Ground of defence to set-off or counter-claim arising after statement of 
 
 defence delivered, plaintiff may reply or amend statement of claim . . 231 
 
 Within what time 231 
 
 Ground of defence arising after delivery of statement of defence, defend- 
 ant may deliver further defence or amend within 8 days . 231 
 
 Ground of defence arising after 3 weeks from delivery of statement of 
 defence, plaintiff may, within 8 days after the same has arisen deliver 
 
 further reply or amend statement of claim .... 232 
 
 Such amendments, how made 232 
 
 Leave of Court or Judge, when required , 232 
 
 Plaintiff may confess ground of detence arising after action brought .... %^ 
 
 Form of confession 232, [161 
 
 Plaintiff entitled to costs up to time of defence being pleaded 233 
 
 Time for delivering or amending may be enlarged by consent. 394 
 
 Delivery or amendment of during long vacation 394 
 
 Su "Defence," "Reply and Subsequent Pleadings," "Amendment of 
 Pleadings," "Demurrer." 
 
 PUEADINO MaTTKBS ABiaiNO PENDING THE AOTION 230 
 
 See " Pleading," "Matters arising pending th3 Action." 
 
 PUBADINGB, ClOBB OF 244 
 
i 
 
 11 
 
 tt^" 
 
 .» ■.-''■ 
 1 "if 
 
 M 
 
 [300] 
 
 INDEX. 
 
 PAOl. 
 
 POSSBMION— 
 
 Writof 336,364 
 
 Delivery of, in mortgage suits [218], [2221 
 
 By purchaser, how obtained [237] 
 
 Pbaotiok— 
 
 Where no special provision by Act or Rules 27 
 
 Assimilation of Common Law to Chancery 27 
 
 General enactments as to ... 30-37 
 
 Criminal procedure, unaltered .... 121,402 
 
 Exceptions from the rules 402 
 
 Non-compliance with rules 398 
 
 Existing forms and methods of, when not inconsistent with Acts and 
 
 rules, continued 99 
 
 Proceedings and applications may, subject to rules, be taken and made 
 
 as 
 
 amgs and applications may, subject to rules, be taken ana maae 
 
 if Act had not passed 126 
 
 Pbbsidrnt— 
 
 Of High Court 20 
 
 Of Divisional Court 20 
 
 Pbintino— 
 
 Proceedings to be printed pica type, leaded 392 
 
 Of appeal Dooks 83, 84 
 
 Prookdube Book— 
 
 Appearance to be entered in 164 
 
 Phoduction OF Documents 279 
 
 See "Discovery and Inspection." 
 
 Pbohibition— 
 
 Definition of 47 
 
 Injunction may be ordered instead of 47 
 
 No proceeding to be restrained by 44 
 
 PuBOHABE Monet— 
 
 Interest n, when payable [236] 
 
 Queen's Bench, Court of— 
 United with other Courts 
 New title of 
 
 19 
 20 
 
 Questions of Law— 
 
 Generally 294-297 
 
 See "Special case." 
 
 Demurrer . . 265-264 
 
 Motion for judgment .324-329 
 
 Real Estate — 
 
 Amendments of law as to , 
 
 Rboetvers- 
 
 May be appointed by interlocutory order 
 
 Appointment, duties, practice , 
 
 Wnt should be indorsed claiming 
 
 Proceedings upon order for appointment of 
 
 Bond to bebrou^ht in, andto betoMaster 
 
 Any party to suit may propose person as , 
 
 At time appointed Master to determine as to receiver and settle security. 
 Appointment to be signed, but no report made 
 
 48-68 
 
 61 
 S6-68 
 
 67 
 197 
 197: 
 197 
 197 
 197 
 
INDEX. 
 
 [301] 
 
 PAOB. 
 
 336, 3S4 
 
 ...[218], [222] 
 [237] 
 
 27 
 
 27 
 
 30-37 
 
 121,402 
 
 ... 402 
 
 398 
 
 th Acts and 
 99 
 
 n and made 
 126 
 
 20 
 
 20 
 
 392 
 
 83,84 
 
 164 
 
 279 
 
 47 
 
 , 47 
 
 . 44 
 
 [236] 
 
 19 
 
 20 
 
 294-297 
 
 265-264 
 
 324-329 
 
 48-58 
 
 51 
 
 56-68 
 
 67 
 
 197; 
 
 197 
 
 197; 
 
 tie security. [197' 
 197' 
 
 Appointment to he filed and effect of 
 
 Tenants, how made to attorn 
 
 Disturbing possession of receiver . . . . 
 Salary, how fixed 
 
 PAOB. 
 
 [I97; 
 197 
 198.. 
 199 
 
 Accounts should be passed regpularly 199' 
 
 Enforcing pavment of balances ^199' 
 
 Sureties for, now discharged |199' 
 
 Master may fix times for passing accounts [250 
 
 Record- 
 
 Withdrawing . 
 
 .241, 243 
 
 Rboord, Court of— 
 
 High Court to be a 
 
 Dennitior , 
 
 Courts of Queen's Bench and Common Plea» were 
 
 23 
 23 
 24 
 
 Redemption, Judgment for~ 
 
 Powers of Master under 332 
 
 Consequences of default in payment under 333 
 
 Further proceedings where plaintiff foreclosed 333 
 
 Times allowed for in mortgage suits [2281 
 
 Default in, effect of [232'] 
 
 See "Mortgage Suits." 
 
 Referees — 
 
 Generally 
 
 See '"Official Referees." 
 
 .97-98, 106, 308, 309 
 
 Reference— 
 
 By Judge of Assize in County Court cases 90 
 
 " Any question " may be referred 91 
 
 Meaning of terms, and cases 92 
 
 Where local examination necessary . 95 
 
 Action for work, counter claim for damages 95 
 
 Appeal from reports 96 
 
 Form of order under sees. 47 and 48 95 
 
 Report, form of 95 
 
 " motions respecting 95 
 
 Judgment after trial of issues 96 
 
 Discovery after order of reference 96 
 
 If one issue in action proper for reference all may be referred 94 
 
 Questions of fraud 94 
 
 Account 94 
 
 Other cases 95 
 
 Relief— 
 
 Equitable relief to plaintiff 30, 31 
 
 " defence to be allowed, as in Chancery 32 
 
 Common Law rights, recognition of 47 
 
 Defendant, power to give relief to, as in an independent suit 32-44 
 
 All remedies to be granted and multiplicity of suits avoided 47 
 
 Parties need not all be interested in 180-184 
 
 Indorsement on writ of relief claimed 127, 129 
 
 Statement of claim and counter-claim, specifying relief in 218, 233 
 
 Renewal of Writ— 
 
 Writ of summons in force for 12 months only 144 
 
 Order for further time to serve, when granted 144, 145 
 
 Writ, how renewed 144 
 
 Effect of renewal. ... , 144 
 
 What evidence of renewal 146 
 

 *i: 
 
 
 
 fifc' 
 
 [302] 
 
 INDEX. 
 
 PAOK. 
 
 Rents and PBorrre— 
 
 MMter may take account of, without npecial direction I^^J 
 
 May aet occupation rent C'^'^i 
 
 Mortgagee in possession liable to acccount for [2261 
 
 Occupation rent, Master mnv set without special direction [1841, [226] 
 
 Bepairs and improvements, Master may take account of, without special 
 
 direction [1841 
 
 Mortgagee, when entitled to allowance for L227J 
 
 RiPLT AND SCBSEQCENT PlKADINOB— 
 
 Replv, within what time to be delivered 243 
 
 No pleading subsequent to reply without leave 244 
 
 Pleading subsequent to reply to be delivered within 4 daya 244 
 
 RiFORT ON Sale— 
 Form of 
 
 Reserved Bidding — 
 Master may fix... 
 
 [202] 
 
 1201] 
 
 Revenue— 
 
 Proceedings on Crown or Revenue side of Queen's Bench or Common 
 
 Pleas not affected by Act 121 
 
 Rules do not apply to proceedings on Rbvenue side of Queen's Bench 
 
 or Common Fleas Divisions 402 
 
 Revibion of Taxation— 
 
 Inwhatcases 386 
 
 Mode of proceeding to obtain 386 
 
 Rules of Coopt— 
 
 In schedule, when to come into operation 99 
 
 How annulled or altered 99, 100 
 
 Judges may make, for certain purposes 99,100,101 
 
 Existing powers of Judges as to making preserved 101 
 
 What provisions of Statutes may be modified by 101 
 
 Lieutenant-Governor may authorize certain Judges to make 101 
 
 Council of Judges to report annually 102 
 
 Howcited 404 
 
 Rules, Exoeftions to— 
 
 Not to apply to criminal proceedings, or proceedings on Crown or 
 
 Revenue side of Queen's Bench or Common Pleas Divisions 402 
 
 Rules of Law— 
 
 Declaration of various 30 
 
 Sales— 
 
 Proceedings under order for [199 
 
 [1991, 
 [200], 
 
 .201,, 
 '2(i2l, 
 "202* 
 
 Advertisement, contents of and how brought in 
 
 Proceedings un appointment to settle , . . . . 
 
 Conditions of sale 
 
 Reserved bidding .\ 
 
 Who entitled tobid 
 
 Publication of advertisement 
 
 Master may sell when no auctioneer 
 
 Purchaser to iiga agreement 
 
 Deposit, to whom paid 
 
 Auctioneer's affidavit 
 
 Report on sale [202^ 
 
 Sale, how objected to. . 
 Bidoings, when opened 
 
 [233 
 233 
 >1 
 t201' 
 233' 
 233' 
 '233" 
 202' 
 202 
 202' 
 
 ■.■.r20:l 
 
 .[208: 
 
 «]. 
 
 4 
 
 8], 
 
 234 
 234 
 235 
 
INDEX. 
 
 [303] 
 
 PAOI. 
 
 • • • • • • • • I Xo4 J 
 
 CJ84f 
 
 [226] 
 
 ....[1841, [226] 
 tut iipeoiai 
 
 [1841 
 
 [227] 
 
 243 
 
 244 
 
 [202] 
 
 1201] 
 
 Common 
 
 121 
 
 I's Bench 
 402 
 
 386 
 
 386 
 
 99 
 
 99,100 
 
 ....99,100,101 
 
 101 
 
 101 
 
 101 
 
 102 
 
 404 
 
 Irown or 
 402 
 
 30 
 
 ...[1991, 
 ...[200], 
 
 ...r2on, 
 
 ...[2(121, 
 ...[202], 
 
 '2331 
 
 •^233 
 
 201 
 
 201' 
 
 ,233' 
 
 '233 
 
 233' 
 
 202' 
 
 202 
 
 202 
 
 '202' 
 
 '234 
 
 234' 
 
 ;236j 
 
 FAOK. 
 
 Payment of purchaae money 2.36 
 
 PoBseBHion, how obtained by purchaaor [204], [237 
 
 Abatract of title, when to be delivered — [204 
 
 See " Abstract of Title." 
 
 In mortffafire caHes [216] 
 
 &e^'MortKaKe Suits." 
 
 Power of Manter under decree for [3321 
 
 Trustees to have conduct of, in suit for adr. luistering truRtH 36o 
 
 SAtAWBS— 
 
 Orders in Council as to, to be laid before Aaseiribly . 
 
 Scandal— 
 
 Striking out scandalous matter 
 
 119 
 
 246 
 
 S3 
 
 98 
 
 SlAI<— 
 
 Of Supreme Court 
 
 Of Deputy Clerks of the Crown and Deputy Registrars 
 
 Sbcuritt fob Costs— 
 
 Statutes relating to 378 
 
 Plaintiff out of jurisdiction .... 378 
 
 Having property within 379 
 
 Mis-description of plaintiff 379 
 
 Second suit for same cause of action 380 
 
 Husband and wife. 880 
 
 By a Company 380 
 
 Solicitor and client 381 
 
 Interpleader 381 
 
 Waiver of right to 381 
 
 Order for, how obtained 381, 382 
 
 Form of order 381 
 
 Default in giving «... 382 
 
 Form of bond 382 
 
 To be, to party requiring security 382 
 
 Amount oi security to be $400 382 
 
 When ordered where costs of former proceeding are paid [121], [122] 
 
 Skparate Estatk- 
 
 5« " Married Women." 
 
 Skjubstbation— 
 Writof.... , 
 
 335, 336, 337 
 
 SiRVICB— 
 
 Of pleadings and other proceedings, during what hours of the day 394 
 
 Of papers in appeal 83 
 
 Of counter-claim 239 
 
 See "Service, Writ of Summons." 
 
 Sbbtiob out of Ontario- - 
 
 In what cases allowed 165,156,157, 168,159 
 
 Material necessary on motion for 159 
 
 Time for entering appearand 160 
 
 Court may direct service ii. .iny other manner, or fix other time for 
 
 defending •. 161 
 
 Allowances of service to be obtained after, not before service 161 
 
 Notice in lieu of service to be served in same manner 161 
 
 SiBVioi, Writ of Summons— 
 
 On partners 143 
 
 Within what time 144 
 
 Time may be extended 144 
 
:i fe 
 
 [304] 
 
 INDEX. 
 
 PAoa. 
 
 Not required where solicitor accepts and undertakes to appear 146 
 
 How to be effected 147 
 
 Personal service, when dispensed with . . . 147 
 
 Substitutional service, when granted 147, 148 
 
 By advertising .... 149 
 
 On married women 149 
 
 When infant interested 160, 161 
 
 Upon official guardian 161 
 
 On lunatic, by serving committee 162 
 
 On partners 163 
 
 On corporation or society 163 
 
 In action to recover land 164 
 
 Day of service to be indorsed on writ 164 
 
 Affidavit of service to state day on which indorsement made 165 
 
 To be proved, before proceedings on default of appearance 170 
 
 See "Service out of Ontario." 
 
 M 
 
 Sto-off— 
 
 PriortoAct 34 
 
 See "Counter-claim." 
 
 Settinq Abide— 
 
 Irregular proceedings , 398 
 
 Judgment by default 269 
 
 £11; parte verdict 306 
 
 Judgment wrongly entered 324 
 
 Settlkd Estates— 
 
 Jurisdiction of Court of Chancery as to. C^^^^ 
 
 Mode of applying to Court [118] 
 
 Where infants or married women interested [119 
 
 Sittings of Court— 
 
 Three each year , . . 400 
 
 Michaelmas sittings, when to begin and end 400 
 
 Hilary sittings, when to begin and end 400 
 
 Easter sittings, when to begin and end 400 
 
 Judges may shorten or lengthen periods for holding sittings 400 
 
 When rule to apply to Chancery Division 400 
 
 Divisional Courts may sit at other times 401 
 
 Sittings of vacation Judges 401 
 
 County Courts, sittings of 403 
 
 SOLICITOH8— 
 
 Acceptance of service by 146 
 
 Undertaking to appear , 146 
 
 To state place of business in appearance 163 
 
 Xot appearing pursuant to undertaking, liable to attachment 164 
 
 Change of, Equity practice to prevail 62 
 
 Privileges of existing, continued 116 
 
 To be officers of the High Court 116 
 
 Court to exercise jurisdiction over 116 
 
 Suing out writ of summons, to indorse name ' 134, 136 
 
 Changing solicitor , 136 
 
 On demand to declare if writ issued with his privity 139 
 
 See " Writ of Summons." 
 
 Act respecting, R. S. O., c [140^ 
 
 When Court will strike off roll for misconduct [124] 
 
 Orders cf Court as to .... . ri26] 
 
 Court may call on to answer matters appearing on affidavit [126' 
 
 Taxation of costs of ri2fi" 
 
 Bill to be delivered one month before solicitor can sue [125' 
 
 Court may allow action earlier, when [132' 
 
■■ 
 
 ar. 
 
 PAOB. 
 
 146 
 
 .. 147 
 
 .. 147 
 
 .147, 148 
 
 149 
 
 149 
 
 .160, 151 
 
 161 
 
 162 
 
 . 153 
 
 153 
 
 164 
 
 164 
 
 155 
 
 .. 170 
 
 34 
 
 269 
 305 
 324 
 
 :::: [1}I| 
 
 .... [119] 
 
 Bnt. 
 
 400 
 400 
 400 
 400 
 400 
 400 
 401 
 401 
 403 
 
 146 
 146 
 163 
 164 
 
 .. 116 
 115 
 115 
 
 134, 136 
 135 
 139 
 
 [140 
 [124 
 [125' 
 [125' 
 [12R 
 [125' 
 [132 
 
 INDEX. 
 
 [305] 
 
 PAGE. 
 
 What constitutes delivery 
 
 Party chargeable may, within one month obtain order for taxation 
 
 Effect of special agreement 
 
 What bills can be referred 
 
 Disputing retainer, where [128], 
 
 Order upon terms after month has expired 
 
 No order after verdict on expiry of twelve months, unless special circum- 
 stances 
 
 Client entitled to taxation after twelve months, where 
 
 Costs of taxation if one-sixth taxed off [129], 
 
 What payments allowed on taxation 
 
 Bill referred for taxation not to be altered without leave of Court 
 
 What order for taxation to b** read as containing 
 
 Special circumstances may 1 , certified 
 
 Where bill referred under special circumstances, special direction as to 
 costs may be given 
 
 Delivery of bill may be ordered 
 
 And deliveiy of papers in jjossession of solicitor 
 
 On application for order to tax, not necessary to prove contents of bill. . 
 
 Party, other than principal, liable to pay, may have bill taxed [132], 
 
 In such case special circumstances may be taken into consideration 
 
 Court may order delivery to third party, when 
 
 Bill once taxed not again referred, unless special circumstances 
 
 When Court will order taxation after payment 
 
 Officer of one Court may request assistance of another in taxing 
 
 Applications for delivery or taxation, how styled 
 
 [126 
 127 
 128' 
 128' 
 135 
 129; 
 
 [129] 
 
 !129' 
 130 
 130' 
 130 
 [131 
 [131; 
 
 131 
 [131 
 131 
 132 
 133' 
 133' 
 133' 
 1341 
 134 
 13.') 
 [135 
 
 Special Cask— 
 
 Parties may state for opinion of Court 294 
 
 Parties may s^ee to pay money pursuant to finding on 295 
 
 What to contain and form of 295, 296 
 
 What inferences of fact or law Court may draw 295 
 
 Court may decide questions of law on, before directing trial of issue of 
 
 fact or making a reference 296 
 
 Where married woman, infant or person of unsound mind interested 
 
 leave to set down necessary 296 
 
 How entered for argument 297, [52] 
 
 ... 9.. g^ 
 
 What Court will Jecide on [119] 
 
 Proceedings on, in Chancery [119] 
 
 Special Circumstances— 
 
 Master may report without special direction [184] 
 
 Specific Performance— 
 
 L/amages in addition to or substitution for, when granted i^^^} 
 
 Of contract by lunatic when decreed [115] 
 
 Court may dev:lare what parties are trustees of lands comprised in any 
 suit 
 
 Stamps— 
 
 Cancellation of , 
 
 [160] 
 
 108 
 
 Statement op Clai&-— 
 
 Appearance to state if delivery of required 163 
 
 Defivery of, how regulated 233 
 
 Where defendant does not require delivery of 234 
 
 To be delivered within 3 months after appearance 234 
 
 Costs where plaintiff delivers without being required to do so 2.34 
 
 What sufficient where writ specially endorsed 235 
 
 Delivery of further statement may be ordered 236 
 
 Statement of Defence 
 See "Defence." 
 
 V 
 
 236-240 
 
i 
 
 I'^f 
 
 i^^ 
 
 [306] 
 
 INDEX. 
 
 PAGE. 
 
 Statutes-- 
 
 Relating to existing Courts to be read as applying to High Court 102 
 
 Pleading "not guilty by Statute" 227 
 
 Statutk of Limitations— 
 
 Express trusts 48 
 
 Pleading 228 
 
 Statutes Bepkaled — 
 
 Imp. Act, 5 and 6, W. IV., c. 62, 88. 15, 16 122 
 
 R. S. 0., c. 25, s. 3, as to Judges appointed after certain date 122 
 
 Any Act inconsistent with Judicature Act 1'^^ 
 
 32 Vic, c. 22. s. 1 ,i 116 
 
 Stat op Proceedings— 
 
 Order for, substituted for prohibition and injunction 44, 45 
 
 Frivolous and vexatious actions 45 
 
 Application must be in same Division .^ 45 
 
 Administration suit, mortgagee proceeding to obtain possession 45 
 
 Interpleader action 46 
 
 Proceedings pending in Foreign Court 4*5 
 
 Default in production 288 
 
 Compromise of proceedings 46 
 
 SUBFCENA AD TEST— 
 
 Compelling attendance of witness 
 
 120 
 
 Substitutional Service— 
 
 When lei^ve for granted 147, 148 
 
 SuJ'MONs, Writ op— « 
 
 5« "Writ of Summons." 
 
 Supreme Court of Canada— 
 Limitation of right of appeal . 
 
 87 
 
 Supreme Court of Judicature— 
 
 Constitution of '. 19 
 
 Consolidation of Courts into 19 
 
 Division into High Court and Court of Appeal 19 
 
 Surrogate Courts— 
 
 Judges may make rules as to appeals from 100 
 
 Registrars of, not to draw or aavise on wills 109 
 
 Fees payable to Judge may be commuted 118 
 
 Where no commutation, excess over $1000 to be paid to Treasurer 118 
 
 Junior Judge may be paid part of excess 118 
 
 Orders as to commutation to be laid before Assembly 119 
 
 Surety- 
 
 For payment of mortgage, relief against. 
 
 [206] 
 
 u 
 
 Taxation of Costs- 
 
 Where party entitled to, neglects to bring in bill 387 
 
 What costs to be allowed 387 
 
 Taxation of, between solicitor and client 388 
 
 Rules of Courts merged in High Court as to costs to remain in force 
 
 where not inconsistent with Act 388 
 
 Party dissatisfied may apply to taxing officer to review 389 
 
 Proceedings upon application to review 390 
 
 Application to Judge to review ,,,,.,,,, 390 
 
FAOE. 
 
 aurt 102 
 
 227 
 
 48 
 
 228 
 
 122 
 
 e 122 
 
 122 
 
 116 
 
 44,45 
 
 45 
 
 45 
 
 on 45 
 
 46 
 
 4<J 
 
 288 
 
 46 
 
 120 
 
 147,148 
 
 87 
 
 19 
 
 19 
 
 19 
 
 100 
 
 109 
 
 118 
 
 surer 118 
 
 118 
 
 119 
 
 [206] 
 
 387 
 
 387 
 
 388 
 
 dn in force 
 
 388 
 
 389 
 
 390 
 
 . 1 ,,...,,, , ow 
 
 INDEX. [307] 
 
 PAOE. 
 
 Evidence on such application 391 
 
 Costs taxed under special statutes 391 
 
 See "Costs." 
 
 Taxation, Solicitor and Client— 
 
 Solicitor to give credit for all moneys received 388 
 
 Master to tax costs of reference and certify by whom payable 388 
 
 Solicitor not to prosecute action pending reference , . , 388 
 
 On payment to deliver over deeds, books, papers, etc 388 
 
 Order for, how obtained 388 
 
 See "Solicitor." 
 
 Taxing Oppioers— 
 
 Powers and duties of 385,387 
 
 Discretion of 391 
 
 Revision of costs by 386 
 
 To arrange what parties should attend on taxation 387 
 
 Court may direct supervision over 389 
 
 Tenant for Life- 
 Waste by 
 
 Terms— 
 
 Abolished except as a measure of time. 
 
 Tbstino Writs— 
 
 Generally 
 
 Concurrent writs . 
 
 Third Party— 
 
 48 
 
 63 
 
 128 
 138 
 
 Claim by defendant against generally 32-44, 205-210, 239 
 
 Counter-claim against plaintiff and third party 32-44, 239 
 
 Claim by defendant against, for relief over 205-210 
 
 Execution against 342 ' 
 
 Default of pleading, when questions affect 269 
 
 Time— 
 
 Computation of 392 
 
 Computation of, in Court of Appeal 84 
 
 " Month " means calendar month where not otherwise expressed 392 
 
 Holidays, when not reckoned in computation of tin^e 393 
 
 First day exclusive and last inclusive, when 393 
 
 When time limited expires on Sunday 393 
 
 Time for delivering or amending pleadings may be enlarged by consent. . 394 
 
 Service, during what hours of the day 394 
 
 Time of long vacation not reckoned for certain purposes 394 
 
 Court or Judge may enlarge or abridge time, when 395 
 
 Costs of application to extend time 395 
 
 Title- 
 
 Defendant need not produce for inspection document relating to his own 
 
 title 286 
 
 Defendant to action for land need not shew title imless, etc 227 
 
 Investigation of [2041, [235] 
 
 See "Abstract of Title." 
 
 Transfer of Actions- 
 
 May be made at any time ._ 66 
 
 Provisions of Administration of Justice Act 66 
 
 From one Division to another , 360 
 
 Where order for administration 360 
 
[308] 
 
 Tbkspasb— 
 
 INDEX. 
 
 PAGE. 
 
 Injunction against 62, 55 
 
 Mortgagor suing for 50 
 
 Trial— 
 
 Facts proved must entitle in law to judgment 87 
 
 Modes of, when Chancery and when Common Law practice to prevail. . 87 
 
 Various methods of, enumerated ^1 
 
 Cause entered for, may be withdrawn by consent 243 
 
 Plaintiff to name place for trial in statement of claim 297 
 
 Notice of trial, when to be given 297, 301 
 
 Different modes of trial may be ordered in any action 298, 299, 300 
 
 Trial of question of fact by a jury to be before & single Judge 301 
 
 What notice of trial to state, and form of it 301 , [21] 
 
 Length of notice . . . 301 
 
 Action may be entered for trial, when 302 
 
 Copy of pleadings for use of Judge 302 
 
 Actions from Chancery Division may be tried at separate time 302 
 
 With whom to be entered 302,303 
 
 Proceedings on entering action for trial 303 
 
 Where plaintiff appears and defendant does not 303 
 
 Where defendant appears and plaintiff does not > ■ 304 
 
 Verdict or judgment, where one party does not appear, may be set aside 
 
 on terms ... 305 
 
 Where material fact not proved by mistake or accident 305 
 
 Judge may postpone or adjourn trial ■ • ■ 306 
 
 may, at or after trial, direct judgment to be entered or adjourn 
 
 case for further consideration 307 
 
 How findings of fact to be entered 307 
 
 Certificate for entering judgment 307 
 
 Proceedings where cause referred to referee 308 
 
 Evidence, how taken before referee 308 
 
 Referee may submit questions for opinion of Court 309 
 
 Court may require explanations or reasons from referee 309 
 
 Tbust— 
 
 Action by or against trustees on behalf of trust 185 
 
 Parties to action for execution of 200 
 
 Limitation as to trusts ^8 
 
 Special indorsement of liquidated claim on 131 
 
 Tbustbes— 
 
 May sue or be sued without joining parties beneficially interested 185 
 
 Where action to execute trusts 185 
 
 " " set aside settlement 186 
 
 In mortgage suits 186, 187 
 
 If the estate to be sold 187 
 
 Applications for advice. 
 
 How made, and costs of 
 
 Trustee acting on advice, when indemnified 
 
 What questions Court will decide 
 
 Remuneration of 
 
 Usual scale of 
 
 Judge may grant, though no suit 
 
 See ^' Trustee Acts," "New Trustees," " Executors." 
 
 [178], 
 
 Tbustbr Acts— 
 
 Payment into Court by debtor, trustee, etc., in case of conflict as to 
 
 validity of assignment of debt, etc. 
 
 English Act for Relief of Trustees, 1847 
 
 Act for Further Relief, 1849 
 
 English Trustee Act, 1850 
 
 Trustee Extension Act, 1852 
 
 High Court of Justice may exercise jurisdiction under. 
 
 177 
 177 
 177' 
 178' 
 178' 
 179' 
 179 
 
 50 
 136;, 
 143' 
 145 
 173 
 137 
 
PAGB. 
 
 . 52, 55 
 50 
 
 prevail 
 
 87 
 87 
 91 
 
 243 
 
 297 
 
 297, 301 
 
 298, 299, 300 
 
 301 
 
 ... 301, 121] 
 
 301 
 
 . . . . 302 
 
 302 
 
 302 
 
 ....302, 303 
 
 303 
 
 303 
 
 304 
 
 set aside 
 
 adjourn 
 
 305 
 305 
 306 
 
 307 
 307 
 307 
 308 
 308 
 309 
 309 
 
 185 
 
 200 
 
 48 
 
 131 
 
 led. 
 
 185 
 .. 185 
 .. 186 
 .186, 187 
 
 187 
 L177 
 
 177 
 
 177^ 
 
 [178 
 
 [178' 
 
 [178], [179' 
 179' 
 
 ict as to 
 
 50 
 
 [136 
 
 "143'' 
 
 145 
 
 173 
 
 137' 
 
 INDEX. 
 
 [309] 
 
 Payment into Court or trsnsfer of stocks under [136' 
 
 fagh. 
 
 - }' t^^^ 
 
 Persons entitled to pay money into Court under [138], [143 
 
 Persons not so entitled '138 
 
 Mortgagor cannot ,148 
 
 Act not compulsory liS 
 
 Payment in, now made 138 
 
 English General Orders as to ( 138], [139; 
 
 Eflfect of payment in, of trust fund 139 
 
 Payment out !l40; 
 
 Who entitled to notice [140^ 
 
 Costs of proceedings [141 
 
 Out of what fund costs payable [142 
 
 Meaning of words used in Trustee Act, 1850 [145], [146], [147; 
 
 When mortgagee a trustee within the Act 148' 
 
 When Court will declare infant heir of vendor trustee, for purchaser 148 
 
 Lunatic trustees or mortgagees of lands, Court may make vesting orders. [148; 
 
 Orders may be made as to stock and ckoses in action held by lunatic 
 
 trustees or mortgagees [149] 
 
 And as to stocks standing in name of deceased person when personal 
 
 representative lunatic [150 
 
 And as to lands of infant trustee or mortgagee [150 
 
 When decree for sale of real estate for payment of debts 159 
 
 May declare who are trustees of lands comprised in any suit 160 
 
 May appoint new trustees [162' 
 
 5^tf "New Trustees." 
 
 No escheat of property held upon trust or mortgage [168; 
 
 Act does not prevent escheat of beneficial interest [169 
 
 Money of infants or persons of unsound mind to be paid into Court [169; 
 
 Costs may be paid out of estate ;i70; 
 
 Court majr order suit to be instituted [171' 
 
 As to vesting lands out of jurisdiction [172' 
 
 After decree for sale may make vesting order instead of conveyance by 
 
 parties [122], [173 
 
 May make vesting order on refusal of trustee to convey or release [174; 
 
 For transfer nr receipt of dividends on stock in name of infant trustee . . [174; 
 
 On neglect ci trustee to transfer stock, order vesting right to transfer . . 174; 
 
 Order vesting right to transfer on neglect by executor 175 
 
 Companies to comply with orders ;i75 
 
 Companies obeying orders indemnified [175 
 
 Order may be made releasing or disposing of contingent rights of lunatic 
 
 trustees or mortgagees of lands [1491 
 
 Or of contingent rights of infant, trustee, or mortgagee of lands 
 Vesting order made where sole trustee out of jurisdiction, or cannot be 
 
 found 
 
 Where joint trustees, and one absent or cannot be found 
 
 Contingent rights released where sole trustee absent or cannot be found 
 
 Where joint trustees, and one absent 
 
 Vesting order where joint trustees, and it is not known which survived. . 
 Or where not known whether survivor living or dead 
 
 [150] 
 
 151 
 151' 
 152' 
 152' 
 152' 
 153' 
 
 Vesting order where trustee dead intestate and heir unknown 153 
 
 Where lands subject to contingent right of unborn trustee [153 
 
 When mortgagee has died and money has been paid. Court may make 
 
 vesting order, when [1541 
 
 Court may appoint person to convey, when [155] 
 
 Or to transfer or sue when trustees of stock or chose in action out of 
 
 jurisdiction, or uncertain [156] 
 
 Or when trustee of stock or chos^ in action refuses to transfer [157] 
 
 Or where stock stands in name of deceased person, and the personal 
 
 representative is absent, or uncertain, or refuses to transfer [158 
 
 Effect of order vesting legal right to transfer stock ;i58 
 
 Court may direct how right to transfer stock is to be exercised [161' 
 
 Effect of order vesting legal right in a cho3e in action [159 
 
 Urokncy— 
 
 Hearing in vacation of urgent cases 64, 402 
 
 Vacation Judges' power to act at other times 402 
 
 General power to shorten times for proceedings 395 
 

 1 ' ' 
 
 
 ' 
 
 
 1 
 
 
 ,' 
 
 <■ 
 
 'i 
 
 
 
 
 ■ 
 
 
 J 
 
 
 '1 '; 
 
 A 
 
 " 
 
 !.■! ; 
 
 It-'™' 
 ■ ■«: 
 
 \'\im\ 
 
 if 
 
 INDEX. 
 
 PAOK. 
 
 [310] 
 
 Vaoations— 
 
 Lieutenant-Governor in Council may regulate 64 
 
 In Chancery 64 
 
 At Common Law 64 
 
 Judges to sit during _ 64, 401 
 
 Computation of time where vacations, etc., intervene 394 
 
 Delivery or amendment of pleadings during 394 
 
 Time of, not reckoned for certain purposes 394 
 
 Business which may be disposed of 401, 402 
 
 Venue— 
 
 No local venue, except in ejectment 297 
 
 Verdict— 
 
 Motion for new trial after . . . .321, 323 
 
 Setting aside verdict obtained in absence of opponent 305 
 
 Vesting Orders— 
 
 Court of Chancery may make l^^^] 
 
 Evidence, purchaser may call for before accepting [122] 
 
 See "Trustee Act." 
 
 Warrant— 
 
 Form of Master's . 
 
 [191] 
 
 Waste— 
 
 Definition of 48 
 
 Bights of tenant for life without impeachment of 48 
 
 Injunction to stay against adverse legal title [101] 
 
 Witness— 
 
 Compelling attendance of 
 
 In general to be examined in op.n Court 
 
 Cross-examination of deponents 
 
 Attendance of, before referee 
 
 See " Commissioners to Examine Witnesses." 
 
 120 
 310 
 
 nsi9 
 
 Writs— 
 
 Dating and testing of writs generally 128 
 
 Execution, writs of 334-343 
 
 iSee " Execution." 
 
 Writ op Attachment — 
 
 When judgment enforceable by 336 
 
 Under what circumstances issued 346 
 
 Leave of Court or Judge necessary 346 
 
 Writ op Delivery— 
 
 What judgments enforced by 336 
 
 How issued and enforced 356 
 
 Writ op Execution— 
 What included under 
 
 337 
 
 Writ op Fieri Facias— 
 
 Generally 334-335 
 
 To have same force and effect as heretofore 344 
 
 5« "Execution." 
 
FAaR. 
 
 64 
 
 64 
 
 64 
 
 64, 401 
 
 394 
 
 394 
 
 394 
 
 ....401, 402 
 
 297 
 
 • > • »oZJ.f oZo 
 305 
 
 [1221 
 
 [122] 
 
 [191] 
 
 48 
 
 48 
 
 [101] 
 
 120 
 
 310 
 
 11319 
 
 <S08 
 
 ... 128 
 ,..334-343 
 
 ... 336 
 
 ... M5 
 
 ... 346 
 
 ... 336 
 
 . . . 365 
 
 337 
 
 INDEX. [311] 
 
 PAOK. 
 
 Writ of Posbesbion— 
 
 What judgments enforced by 336 
 
 In what cases to issue 3f 4 
 
 Effect of 354 
 
 Writ op Seqckbtration— 
 
 Generally 335 
 
 What judgments enforced by «'<''> 
 
 .334-336 
 . 344 
 
 Writ of Sdmmons— 
 
 Every action to be commenced by 
 
 Statement of claim to be indorsed 
 
 Costs where prolix or other forms used 
 
 Form where served in On rio 127, 
 
 Form where served abroan 127, 
 
 Form of notice in lieu of service > 127, 
 
 Service out of jurisdiction 
 
 To be tested in name of President and on day of issue 
 
 Court or Judge may amend at any stage 
 
 May issue from office in Toronto or outer County 
 
 What officers to issue 
 
 Place for entering appearance to be stated 
 
 To be prepared by solicitor 
 
 May be written or printed, or partly written, partly printed 
 
 To be signed and sealed by officer issuing 
 
 When to be deemed issued 
 
 On sealing, copy to be left with officer 
 
 Entry of every writ to be made in Process Book 
 
 Concurrent writ, when to be issued 
 
 For service abroad with one for service within jurisdiction 
 
 Solicitor on demand to declare if issued with his privity 
 
 To disclose profession and abode of plaintiff 
 
 Proceedings stayed where writ issued without solicitor's privity 
 
 Where issued in name of partnership, names and residences of members 
 of firm to be given on demand 
 
 Renewal of 
 
 5« ♦' Renewal of Writ." 
 
 Loss of writ ■ 
 
 127 
 127 
 127 
 
 1 
 
 2 
 
 2] 
 128 
 128 
 129 
 136 
 136 
 137 
 137 
 137 
 137 
 137 
 138 
 138 
 138 
 139 
 139 
 139 
 142 
 
 143 
 144 
 
 145 
 
 Writ of Summons, Specially Indorsed— 
 
 When plaintiff may sign judgment on non-appearance to 170 
 
 Defence by one of several defendants 171 
 
 Leave to sign judgment 174 
 
 What sufficient indorsements 174 
 
 What sufficient statement of claim 235 
 
 Writ op Venditioni Exponas— 
 
 May be issued and executed as heretofore . 
 
 344 
 
 K^lEra^^l 
 
1^ n 
 
 15 ': 
 
 ADDENDA ET CORRIGENDA. 
 
 
 Page 95— In the heading " Appeal from Orders under Sees, 47 and 48," the word 
 Orders should be Reports. 
 " 157— At end of line 11, add " See also as to this point, O. XLIX, r. 8." 
 " [109], line 21 — For secures, read seems. 
 " [187], last line- Add 6 before Pr. R. 
 '• [207], I ne 13— For do<e read «aiM. 
 
 '■'1 
 
47 and 48," the word 
 3. XLIX, r. 8."