IMAGE EVALUATION TEST TARGET {MT-3) 5^ // {./ ■iv „ Aug. 13, l>^4il s i)iGi!::«iT or €ase8 I)KTi:rmini:i) IN TIIK OOUBT or QUEEN'S BENCH, I Ud.M MICHAKLMAS, TENTH (JKORGK IV. TO HILARY, THIRD VICTORIA. ADATKMKNT. In a pica ofiion-jnindor l>y n dcrcnilnni in aliaif'iiH'iir, it in siiHiiicnt to state llinl the partus not joinod are liviiijj within tin jiirisdiiiioii of tlic r.xirl nt the lime of pica pleaded, and n ri|)li(ation to Pueli a pleu Ji>r the non-joinder of two persona is not double for nsHii^-ning a dillirrnt (.aiise lor not joining each ol the two Vuillc vs. Harvry. Miehfl. 2 Will. IV. Where to a plea in abatement of privi. lege as an attorney, the plaiiiliir replied proecsa insiied auaiiist him and others iin. dcr 5 Will. iV. ch. 1, (restrniiiing several actions on lii^ls, notes «cc.) and that the others coiild not be served, &,c.and the de. fendantdciniirred— the court overruled the demurrer.— Richmond et ul. r». Campbell one, iVc. INIieh.f.a Vie. Where there is JiKhrmenl for plainlilT on a deniiirrcr to a plea in abaicnienl, he cannot recover costs under 7 Will. IV. eh. 3, sec. 3(i until the termination of ihc suit. — /A. Hil. a Vic. If a plea in abatement of the non-joind. er of a dclendant do not state his place of residence. It is a nullity Brewster bs. Davy. Hit. ') Vie. A plea of iioii-jiiiiidcr in alialeineiit i.-i bad Qi! ilciniirr.r, il ji -fjiu only tht- initial letters o( the christian names of the (larty not joined. — Hr>i 'In I'lamti/fH Attorney, the Curt on ibe allnlaviiH and applKaiio,, „, ,..„,„| bona 11,1.. ereilitor. ,„ ,bc. nbHcomhiiH debt, nr. or.b.r.Hl ibo At,ori„.y ,„ „„y ,., ,,,^. Hi. nil tb,; money he bad received, ami "e ^b.riirto d.VMle all the mo.K.y between "■0 bs„,ur Ibe last pro,.,.,, Ii„. was l,a,l nnilio ground that the I'lamtiUs were not ";.";'"""■'-'■ 'I- IVovinee. b.iMibd m. ;'""l^iv.,s|„.wm,,,ha, he was not indebted " -ny ndiab.taiit of ,1,, Province, ,ho to.irt rcluse,! the rule an.l b.f, him to his Will. IV. Hee now 5 Will. IV. eh. 5. Tl.c bonds r<.,piire,l to bo j-iven by „„ "l-c(( diiiL,' Was linil, lilt liii' I'lainiillH were mil 111' rn,viM(( , 1,111 ii|,.,i n„ i? Ilia I 111' wu» not iiidtblfd 'III id tlio I'rovinco, llio I' rale nnd Ictt dim i,, )„;, el nl. m. [UaiU. Hil. 5 "w;« Will. IV. cli.5. •Iiiireil to bo f-iveii by n„ ur lo ol.iuin a mtiicnciltum la ntfiiiiLst him, must be iti 111 I'l lliidcbtf Will. IV. rdil.tor niuriiini,' i,, the I'll and b.doro Jud^'n.eni, w trial urulur the Slmulc. !• i'». liuck. •omlliin; debtors' Act, a rtditor was rnliiled lo I'Sf 'liiont ntlHching ere. 1 c.vcciiii.m (irHl (iani. i. Trinity, G &, 7 \Vi||. V'iU. IV. th. 5. ' will not bo grnniod dinif debtor /;,r uiili,|iii. ^lark Its. Ashiiold. Hob. mrnl baa boon issnrd lins debtor, a rule will ■iny i)nrty,w bo 1ms pro. r in lii.s iiossoasion, to Slifri/lio whom the at. 3d.— Mulicns vs. Ami- iC. ; wlilicalion by the surc- heabneondiiitr debtors' ; 111, liiuat be juadfc by IN THK iftVm l>r aiTEENS BF.NMI. i ibc mrciies ibcmsflvc!!.— .Mowai n. For- ( hIm 0. Kiulir, 'J Vic. In the uindiivii of two rrcdibic wilnogiien rc<|uired bcliirr atlai'hiiicni ni;ninHt nn nb- MiindiriK di bior, it m BuHiru'iit to Ntiite ' thrir bcliir that the debtor " lins left the Province or in concealed wiibm ihemiine." — Toticn m. Kleichcr. Triniiy,'j\. 3 Vic. ACCOUNT 8TATKU. TIk! plaintiff may 'tcover on tho count for nn nccoanl Miaird, on an cxprisn jiro- miso to pay the amount of nn nccoiinl, the admiwiion ol the correctneSH ol which by the dcfiindanl, cannot bo received in cvi. dunce under ^fico. IV. eh. I 'I, the account Ik'iiik made up and remlin d in New York cum-ncy, and die debt haviiii; been eim- Iraitted in thin Province. — Crooka et al. M. Law, Trinity, 7 Will. IV. ACTION. Nn action lies in ibis I'rovincn aj^ninnt nn heir on the Biniple coiitrael ih bl of hi:< unccator. — Forsyth r». Hall. lid. 1 Will. IV. Trcspara or case will lie for .=ediiclii>n. — Cuvnn i)». Wal-^li. Miclis. 1 Will. IV. An action on the ease may be maintain- ed nfjainst a liailill'of a Court of Rei|iicst«^ for I'ulsely sweaiinf; to the service of ii Humnions on the pluiiitill', whereby Judg. nient wa« pivcn against him ; and the com. nion law remedy is not taken away by the action given on the Imiliir'a covenant by Iho Court of Ucqucsl.s Act. — Cliuc vs. Macdonald. Easter, 2 Vic. Al'FiDAVIT. In iho jurat of -"j affidavit sworn by nr. illiterate person, the omission of the slate. nient that the deponent appeared to un- iierstand it, is fatal. — Moore vs. James. Michs. 1 Will. IV. An affidavit made by two persons, not stating distinctly in tho jurat that both were sworn, cannot be read. — Nicholson dem SpalFord ii». Roc. IIil. 3 Will. IV. But an amendment will be allowed by I he insertion of their names. — Fisher ts. Thayer. Trinity, 7 Will. IV. ALIEN. A conveyance in fee to an alica is not void, but he holds for the beuefu of iiie Crown, and is ciitilled as agaio^iuU others. until the land is reucd inio ilic handt of • Ik Uui'> n on olliie loiiml, and il a sub- ject be a iru-fiee lor an alien, ho has Iho h'snl rslato,nnd ihc Queen i» rntiilrNi to tho profiU) ; and a penton clainiins ihroiiith an alien may have a i,'<>ihI title, nlthough tho alien himself would hold only for the iM'no- tit of the Crown, and semble, a person claiinine lands under a .Sheritrs deed sold at the Hint of an alien, is entitled to recover in ejectment notwitlistandini? Hint. 5 Geo. II. it beini; necegsary to lakn the objection of aliena!,'e,if available nl ajl.before execu- tion ( xeeined. — Doe Uiehurdson D«. Dick- sou, lid. U Will. IV. A person who was born in the United Slates before the revoluliois, and has con- tinued to reside ihero since, is an aliuo, and cannot maintain ejectment in thiii country. Mie Patterson vs. Uavia. — Easter, 7 Will. IV. AI,LR(!IANCK, (OATH of) The cerlilieato of n Commissioner fur adininiHierin'j the oath of alhuianee, that such oath was adnilnistered, is sutiicient evidence thereof after the death of tho Cominissioner, and of the person who took I he oath. — Uoe vs. Lindsay. Easter, II Geo. IV. AMEND.MENT. Mesne Prnrrss. — Tho Court rcfiisod to amend, after nn arrest, a writ of Capias ad respondendum by making It a Testa- tum, although a prtceiiio for a Testatum was filed. — Cam':' 'I »». Hepburn. Michi. 10 (Jeo. IV. AJjidavit. — An ninendinent was allow, ed in the Jurat of nn allidavit sworn by two persons, by inserting their names, on payment of costs. — Fisher vs. Thayer. Trinity, 7 Will. IV. Declaration. — Where the plaintilT had declared against several defendants, when only one had been served, an amendment was allowed by striking out of the decla- ration the names of those not served. — Zavilz ts. Hoover. Miclis. 1 Vic. Declaration. — The Plaintiff was allow, ed to amend his declaration after issue joined on nul liel record, by substituting (iroiiiiie and uudertakiiig for prr.miseg and undertakings, although there had *l 6 A I.IOKST ,.F .ASF.S ..rrrBMINED Ihm. » IrinI „n ..llirri«..i,i,oonr|,„|j„„ ,., tli« (;...in.ry.-C|,„r.|. m. |l„rnl,art. K,, Mor. I Will. IV. /''■'■I'lriitmn-Kirrlmrnt. - Tlir Court M.iH4.,l n.i a.,.. .„l,„..nf ,„ „ ,|,.,.|„r,„„„ 'jy'f ■'•'"» ixt, i.y nhcrwi. ,U„ nauw „H,,^ I ..wiiship, ill w|,„.|, ||„. la.idH l.,r wlii.l, Ihc acli..ii wan LroiiRht w.ri. moli'il i,. |,r JimaKd.-Doo vt.Uov. Ka^itr, 11 c;c... rrr^ _ A vrrdi.t lakni for thr ••mouniol .l,..,„.„„|,y„| „ |,„,| ,,„„,,„ il"! I.nni«. wn, „||ow..,l l„ l«. aninidcl l.y •lif.lu,l«rH', .«, I.y rc.lu. in/; it lo ,)„' •>....• i..,lor«,Ml ..„ ,1.0 r:,|,i,.M „.| .„„„n,i. •■'I'lum, will, ini.r> M nri,l Sli. rid's lies _ Ulln„lm„ ,„. S,ro|,n.|.;t.. i.;,,^,,^, ",, CJio. IV. AmriiKmi-iit nf Ihimnnn, ./\„ n,,,,,,,,] •notit it. ,.|rn.li„-H will |„. .nij,.„.,.,| u(„,r ""'"•"*''*'"^"'<'' •'"'ilMwr.nt ,|„M,n,-rHoM n ,lso M. Ki.iir Iriiiily, .-i ni„| (; Will. IV. Asfe»smn,t of /Mm-(irM._\V|,oro on nn nsH,..s«iM,.,u of da,Mn,;,-.s ..„ „ |,r„„„s «ory nolo siaio.l in i|,„ ,|,.rlnr„.,on lo |„. f"rX-.10,«n..i..ror.tl;iwaH produco,! i„ ovi.lrncp, nil iim.u.linciil i,( U,,. |J,.r„r,l to .-orrosimiul wi.li ili,, proot wqs roluso.l but the Court nllowod a vcr.lict lo l„. ,,„' lornllbr tl.o nmount of il,,. i.,.,.. «,., o,„' in the plondinifs, on llu' oilier not,: l„.i„,, d.Ml na ,|,„ ,„„. „„ „.|„^,,, ,,,^, ^p|.^^^ ^^ >.roiiKl.t,_nank U. C. m. Crawford. Tri tii'y. r. and Will. IV. y«//-„„„,,_vVlicre in d.l.t the pl.ijn. Idfliad am'*,.| dainair.s to nn nnioiinl «r<-'.t.T tlian l.i. drrlaralioi, warianr.Ml aiidliadr,r„, wn., allowed l.y reducing the dninnre..,. f<-c. on payn.ont of coals.—Aveiill „, I'owcll. Miths. i> Vie. Excruiiun. ~ \n nnu n.lnieiit wasni. lowed in a Fieri Faei.x. „.,;„„ ,.,„.,, nf'or a mIo under it by iho Hherilf.- Fienmu, ,„.Exors of Wilkinson. Trini.v, 1 and a Vi.v '' Srnr /„r„„._|„ „ j,„|„„,,„, „„ „ ■"'"■'■'"•"• "If"""' »M » .iiHira-or n,i "MMndimm waH allowed 1,,., he i,a„„ „, 'I- ....eHmte. l.y „„.,,„„, „ ,.,„„,^,„,, WMh ihe name n, ,h.. „n,Mn»l jiidL-mrnt nnanawardilmttliedi.femlani slx.uld pay to the plaintilf XM'J o„ a day named, and that the plainiitrH',„u|d deliv. '■r up a hoiLsc in his po.s»c8«ion to the dr- fiwidaut on the Rauie day. Ikhl that these were eoncurrent aet.s. and that die plaintiff nnisi nv.ra r.'.idiues., to perform hi.spart — Miikeriis. Fiooih. IIjI. 10 Geo. IV. A reHreiiee to nrl.ilration l.y order of NiHi I'riiis may he revoked hy either party !.clore award made— Burrill v». Mills I i'"di> WUI. IV. U'liero it is awarded that one party «l'nll pay money, nnd die other shall de- livrr up piemiHe.s on the same day. in an action (or the nioney, it is sudicient to aver a readiness to deliver the premise... and v»'" V. rsn, and where t,. a plea that the delendant demanded the award from the arhi.rntor on .Idi Feb.. the plainiitrrephed " I '"'•'"'"" =>'!'! notice of award on ihJ h rihe lil.llle) ll Itaker M A mils to abide hnvitii; ni to n (i r I'lMtrirl ( Perth, an •iinii' Ih •wardeil No eaii.ie •hoiild be lli.it the a' f.'iiilant 111 taxed CM ulilirein{» lieyon jtors l)ein;» ei flainlid's ve riista fjivmnr ence to depri ■"'». — III a jmli-nirtif on n "(,"1111"' nil ii.liiimiHira'..r, n.| """• ull'>Hr.l ,1,. ,1,., „„„„ „, '. I'y ninkiii/r II ri,m-n|Min.| MO III III., oninniil jmlL-mrni — WilJnrJ rt. WimiIcuii. Tri. >. IV. A riror.1 W3« nmrml..! iii rill oftcr nil ap,H!u| to iho in.il. — K.)wniiJ vt. Tylc r. III. IV. APPKAf,. firmer Hill not !„, ullowril k'niiiit in (u»„iiro( Ina in- <■ rmiiiH, (. ihe all.iw.' jx'il to III,. Kini; in C.mn r ili(^ nll.,waiifi' o| thai lo nixl C.iin.'il.— WnBhhurii, < II. i;asirr, a Will. IV. TKNNTICi:. .'"'fni.prpiiii.valiipronlra. "MB ..I 5 Kliz. Hi. 4. is not l'',nn(l.sriiilili.,i|,„tHiainio II iliiH Province Fish r« Vill. IV. ilTUATiON. award that llic di-fcrnlan. I'I'laiiilidX'M'Jon a day lli ahi,!.- the event, an.l Ih.. arl.iirnlor« haviiii; nia.le no award, lli.. pnrim Hiireed I I" r| ihe i IhHlrire Conrt, nlioHh.inld lint eoinn to r.Tih, and n DiHiri.i Court .liidi'e havint' eonie Ihrre. heard the rvidene.. and •warili'd ihiit (he plniiiiiir in that ma hail ' «■> eaii..«. of aeiion, ami thai jiid','iii. iil 1 •hoiild l,e enl. II il lor ih,. ,li Ii ndniil. Held i Ih.it th.. nwanl was <> |, ai„| i|,„i ![,„ ,jp. j (eiidant niiu'hl maintain ft«(iiniii«it for the lixeil co«iM ,d the cause, nriil was not! •ihhirrd III enter jnd-iii..||t. — || ,|| ^n. ' Miiihiw.n. Ilil. ;j Will. IV. ! Where n plaimiir liuvinf; two nelion.s jxndinjj, one in a rrpresenlalive eharac- ler, and the other in lii.< own riirlii, r, ler. red hoih III urhitraiora, who Were lo ninke Ihrirawanl l.y a rirlnin day, or ap|H>iiii • II iiiiipire in wriiiiiir, and the nrhilraior*, ri"! Iieiiii; aMli...|.ed asth, If ,iwn, h.fore ihe time j limited for inakiMi: their nward hail evpir. | ed, and awarded then l.v a sum of money I" the plainliir in his representative j tharneter. The Conn on anidavila of the I Umpire and one of the aihitraiorn that llie money was intended for the |ikiinii(| tihiaown ri^;lil, relk^ed to^'rant an at. toehinent f.r non-payment ,d' the sum • wanled, and atierwanl.H on notion set Ihe award aside.— Deimisoii ts. Saiidford. Ilil. 4 Will. IV. An award was .lot aside on aceonni of Unfair conduet in Ihe nrl.iirators in their f tanner of licariit.i;: the evi.lenee Ilani- |ion vs. Wil.soii. !\lich.s. .I Will. IV. ' Where a verdict was taken lor .£:>0() iiihject lo he reduced l.y urhiiralor.s, the fosts to al.ide the cvciil, and the award vas for the delendant, it was set asiile as lieiiifr h,.yond the snhniissi.m, the arhiira. Jtors heiii^T eiiipowere.l only t.i redue.. il,,. | plaintill's verdict, and tlie eondiiioii a.s to -f'"'-tS ;;!vin5 tiicill no iiiillioiily l,y JnUT. ence lo deprive the plaintilTof ii altoj,'cther, tint npplviii.'i only i.. the ammini of rodi- I" '"•evrniHallyta,..l.-.'J|,nw r..Tur(on. Ilil. .'.Will. IV. When, reriflin mill, rs m .lilh rrnrelK. iw.en .\. and II. «, n. nhrr.d n. nrl.iini. tion.aii.lnl*.' ulKiw^oliiiiiroinimneed or pn.«eeiii,,| l.y rjilnr parly, wh. iher Pivil or oriminnl," ami ih<. nrhiiralnni nward.il ihnl II. hIiouM pay a larwimin la A. and also all .-.*is of nmi>. ||,.|J i|,ai Ih.- awani was siiHleiently linal wlllioni ".aliiiif ihal the suits ahouhl eeaite, and ihat It roiild not ho imp. ached, hecausn daniaticH had heen cslimaied liy ilie irbi. tralors on roi,u. maili rs mio wlmh llicy should not hav.. iii.|iiired Diicol r*. '■rem. Ilil. :, Will. IV. Where on n nlerencc hriivpcn A. and I!., A's afjent attended on his 1., half, and alier H. had Kikii evidenee oi iIr. amount "i tXMHI. mind, uiidirsiandii.« from the .irhiirators ihal the ,as., wa.s ehw^d, and I!, ill hiH nhstme iiidiieeil two of ihe arhi. irnlora to award hini X'lOOd, the i|„r,i te. fusing to c.iiisenl. 'I'ho nwnni ws set asid,; on payimiit of eosu.—Vun Kgiiiond rs. .lone.^. 11,1..') Will. IV. If tt hond of siihmission contain a rlaiwo that Ihe siihnii.ssioii shall he made a rulo of court, it is not necessary that an a),Tep. ment enlanrins the tmie should he made a rule ..f Court ns well as the suhniissmn. and it is too late to ohjeet to an nwani after n lap.sc of four terms from the puh. lication, and an attaehment srantcd for ii, deferred the piil.licntion then at the reipiest of die delendant, and hcani further evidence on both sides on the f.il. lowiiii; day, and then made iheir award. Held ihat die c.vleii.sit.n ol die lime was a parol sul.miH.si..|i, and ilia. as.suiiip.Hit was mainiaiiial.ie thereon li.r not perf.irmin)? the award, alihoufh no action could ho hroii^'hl on the hond.— Hull vs. Alway Ilil. r. Will. IV. n DlfiEST fiF TASKS DETIiRMINKn Where nil mrjllrrn in dwrirrnro in law and equity linvo Ix ni n fcrrcil, and tlic award ia Icijal on ilic face of it, it will not lir Hot HHidr nlilioupli it may accm that thp orhitrator ha.s niislakrn liic hiw ond the oniuunt awarded is h>r/,'f, and the Court will r< fcr to papiTH delivered by llic arl)i. Irator BiniultnncoiiHly wiih llic award, and intundrd to be explanatory of it, aa a part uf tiifl awnr^ould leave the I'rovince, itc. The aflidavil Holaford vs. Stewart. Easter, 11 Geo. IV. Fureiffmr.—An arrest founded on an adidavit made while the defendiint was in the United Stains, in readiness, in case he should come over to this I'rovince, was set aside as irrei^ular — Cozens vs. Ritchie. Easter, 11 Geo. IV. Partners — Where the aflidavil of debt stated that two persons, trading under the name and firm of T &, Co.were indebted to tlio plaintiff, and process issued ngainsl one only, the other being wiihin the juris. diction, the arrest was set aside.— Chis- holin vs. Ward. Kastor, 1 Will. IV. Alias irri/.— Where a defendant was arrested on an ahas writ, under a Geo. IV. chap. 1, and gave a Imil bond to the Sheriff, after having entered an appear- ancc to serviceable process. The hail bund was set aside with eoBif.— Duu>jlass j t!». PowcU. Miche. U Will. IV. | Court granted an order to hold bail, Smith rs. Lawrence. Miehs. '2 Will. IV. Second Arrest. — A second arrest was allowed where the first had been set aside fiir a mistake in the Hidavil of debt, ihu plaiiiiiir having diseonliiiiied that action and paid the costs. — Sheldon cl ul. vs. Hamilton. lid. li Will. IV. Pririlr/re.—A suitor attending a Court of Re Orilr, 1,1 An(^l.-~'\']ir iiidmnry com. < liiHion in an nflidavil d ili In that Ihn ilc. pofU'iit (loca uul make llio adiilavii, \c. Irimi any vcxutious or iiiali( joiis iiiotivi Srrond AiTml.—'l'U,- (;„„» refused to set aside n uccnnd arri'si, wlicrc llic de. lindant had Iioon diwIiarMtd (roni itic first, on (.'ivinc a promlm.^y note jointly is iinnrrc-SHary wlicrf an order is ohiaincd I with a third |i( rson, and asjrrcinK U) pay fornn iinvHi,— Mcliaiiyhlin r». VVi«incr. j ''"-> costs iji a nionih; the note having boon MiihH. 7 Will. IV. j dislionond.nnd the coHts not paid, nithoiigh AJIiitiirit of Drht. — An nllidavit (or i "" action liad hocn brought upon the note. CO(hIh noid and ihlivcrcd must shew the ' — McDonalil, et al. vs. Anini. Eaatcr 'J rr>picst of tlic d. lindant, niid the niiiirai j ^'f- hciiii; laid to oihrr sinris will not sn|i|i|y <>rilir In Arrrst. — An order to nrrcut the dchet — Watkiris < I al. r«. I-id.shilz. ^''^^ iiliis.il in anions (or malicioua arrest —lid. 7 Will. IV. j''""'lil)il.— O'Connrrrs.Anon. Uarciisr*. Forriumr — Where Imih the pl.iuiiill i "''"• Tnni'y, -i ^t .1 Vie. nnd defendant were iMliahilarils of a! '"'"•'* "^"'— Where a .Iiid,.:e's order is forei.;n country, and had eonie lo^edier j '"'''''"'■■"■y '"^rresl, a d( (endant eannol ()c ...... .1.:.. I> , .. J l,..l.l 1,. I...;p -i: into this I'roviuee wiili the iiileiition of reniainini,' ordy a li w hours, .Tnd duritiR their slay he re, the plainlilf inailo |)ie n.»unl adidavil ami arrested the ilcfondani. The arrest w.is hi Id lo he refular.— Ray. nor et al. r.v. Ilatnillon. Alichs. 'J Vie. Afiil'irit of I), lit.— An idlid.ivit of debt acaiiist the indorser of a pronii.o8ory note, or the drawer of a bill of c.xehanire, niii.sl state the default r)f the ni;il:eror aeeeplor.- R0.S8, ct al. j'.s-. [Jalfour. ei ;il. Mieli.s. a Vic. riiril/'sr — A person who, luiving nt- lemled ;i.h a Crand Juror at a Court which adjourned for a (i-w days, went into ano. Iher Oi.strict on priviUe l)usines..'kI from itio ry note j(jinlly yreeiiif; to pay le having boon pai(i,altliddy m. .Motllit. Easter, 2 Vic. In an action for an assault and battery, a conviction for the saiiio assault under the petty Iresjiass act must bo pleaded and cannot be given in evidence under the fe'eiitral issue.— Hcmy r*. .'^iiiipson. Tri. nity, 1 &. .> Vie. A plea of conviction under the petty trespass act, i Will. IV. cli. I i„ an ac tjon for an assault and battery, is not supported by proof of a conviclioa for an assault alone, and sembic that a convic. tion under that statute for an act ntf&iwt the public peace, does not deprive the party injured of his rijrht to a civil rcme. dy. — Delong ta. McUonc II. Easter, 2 Vic. ASSEMIiLY, (iiofsE OF) The House of A.sseiiibly has the power ofimprisoniiij,' persons guilty ol contempt in answerin/Lf or refusing to answer (pits, tions before a select committee. — .MRcnab vs. Bid well. Easter, 2 Geo. IV. AS.-^L'MP.SIT. A. hnvim; a claim on (iovernment for certain wild lands, cave a bond to B. to procure a patent for the same in B.'s name, on his promising' to pay him a certain sum therefor, A. obtained the patent, and informing U. of it, requested payment, which was refusal ; A. then brought rJ. sumpait for the value of the lands sold, and for services rendered in procuriiiii letters patent to B. granting him certain land in fee simiile. IleM that the action was maintainable — Kilborn rs. Forester Ilil 1 Will. rv. Where an agreement under se-il I'or the completion of certain work had been en- tercd into by one of two plaintiffs, and the other who was not mentioned in theagree. ment sealed it also, and afierwards assist. ed in the work, and was recognized and paid by the defendant for whose benefit the work was done, as a joint contractor with the plaintiff mp.ntioned in the instru. ment. Held that assumpsit was main, tainable by both lor the value of the work, an implied parole agieemenl having been sukMitntcd for the insirnment under seal. | —Ross, etal. vt. Tait. llil. 7 Will. IV. I ATT.VINDER. The property of a person attainted for high Treason, is not forfeited until the at. lainder is complete — Eastwood et al. tt, .McKeiuie. Jlil. 2 Vic. ATTACHMENT. Sec also t^iiEniFP— Arroiufir. Aircird — In order to bring a party into contempt for not paying money pursuant to an award, the original rule and other papers should be shewn to him at the same time as the copies are served.— Kent vi. .Sumner, 'i'rinity, U Geo. IV. (oirimrit — An attachment will not be grHiiicd against a witness to a cognovit who refuses to swear to its execution, until a rule has been served on him, ordering him to do so, and ho has disobeyed it. Ham r*. Ham. Easter, 3 Will. IV. Ctfrk of Ihf Crown.— An attachment was granted against a Deputy Clerk of dio Crown for having issued serviceable pro. cess without authority, and afterwards on his appearance in Term to answer inter rogatories, the Court directed him to bo dismissed from his office, and to pay ths costs of the proceedings.— Rex »». Fraser. Trinity, 3 and 4 William IV. Diilrict .Tudge.~An attachment will not be granted against a Judge of a Dis- triet Court for not obeying a writ of certi- orari, unless it be shewn that he is acting conlumnciously.—In re Judge, Niagara District Court. Hil. 4 Will. IV. Limits. — A prisoner in custody for a contempt may have the henefit of the lim- ts — Re,\. vs. Kidd. Hil. 6 Will. IV. Srrond Attachment.— A second attach. ment was refused, until the costs of setting aside a former one had been paid.— Rex vs. Riittan. Easter, 6 Will. IV. JudfTc's order.— An attachment will not he granted on the order of a Judge at Nisi Piius, until such order is made a rule of Court.— Plumb vs. Miller. Hil. 7 Will. IV. .htdtre'n Order.— An attachment for non. payment ol costs under a Judge's order, ?ulisei]neully made a rule of Court, where a demand was made under the order, but not after it had become a rule of Court, was refiiBPd,— Culver »■.•!. MrO-onFl! Trifj i'y, T Will. IV. 13 A DIGEST OP CASES DETKRMINED Affidavit. — An nffidnvit to xft aside nri ntlachinent niuHt lie ctilillcd (in thf Crown iide, nnd not in llin imincH of the parlies to ihc Buii — Mallocli r*. Morris. Trinity, 1 and 2 Victoria. Co»M. — Wliere n demand of costs to ground nn attacliinent is made iinilcr a power of Attorney, il must lie sliewn that a copy of the atiidavil of the exceulion ot the power has been served.— .Marcy i-*. Butler. Ea8ter, i> Vic. Morrison ts. Low. den. Trinity, 2 and 3 Vic. ATTOKMOY. Sheriff's fern.—An Attorney is liable to the Sheriir for fees on executing writs, and for services rendered for him in causes of big clients, without any sperial under, taking.— Jarvis m. Washburn. Easier, 1 1 Geo. IV. CunU. — The Court refused to order an Attorney to pay the costs of a suit on a bond to the limilfl, where he had siifncd the name of one of the obli^,'ecs and exe. cutcd the bond in his behalf, on a mere parole authority— Leonard r*. Gluidcn. man. Mkhx. I \V,\l. iv. Action. — It is no defence in an action against an Attorney for money received by him on account of a client, that the judf;. mcnt on which the money was paid was obtained through the fraud of siirh client. —"Williams rs. King-, Easter, I Will. IV. .,4r//on.— An Attorney has till the fol. lowing Term to plead to a bill filed against him in vacation.— M'Canady vs. Foster. Easter 1 Will. IV. Action — An interlocutory judgment siRned in vacation on a bill against an At. torney served the same vacation, alihoulaintiffprov. led that day, '• Held suf. lict, and Uiat 'on, the dc. [cMartin vt. will not pro. an Attorney IN THE COLRT or i^UEE.v's BKNCH. 13 on a charge of mal.practice, where his „ Hulllcient.-HaJl r,. Shannon. Kojlcr, '> conduct has been merely inadvertent, and : Vic. tbo party conipluining has a remedy by action — In re Siuarl one, &,c. ilil. C Will. IV. Fee$.—\n Attorney's bill which con- taincd sonii' exorbitant cburt'is wiw order, ed for laxiiUon, alihough it hud been paid, and several months had elapsed since its delivery — Doe Fraser ts. Eaglesmii. Hil. 6 Will. IV. Cuitg. — Where a plaintilT, an Attorney Privilegfd Communiention. — A com. niuiueiiliun madr to mi Attormy m his pruh ssioriiil cliariiclcr, if privileged, a|. tlioiii.'h ilicre IS no siiit pending coiiceriiiiit; ilir subject matter, nor any contemplated at the time.— Uattersby m. Haycock. Laa. tcr, 2 Vic. Custs.—\n Attorney cannot proceed for his costs, after a plea of release puis liirnen conliiniance, iinliss he establishes , , '^.■*-, "lo.ffw, lie i-aiuuii.«ne« brought an action of assumpsit and proved j a clear case of Iraud.-White ti. Uoulton a cause oi action to the amount of X'30, Kastcr, 2 Vic. lie was allowed full costs, although the jury rejected the whole of his claim ex. cept three shillings.— King t». Such. Ilil. 6 Will. IV. ArticUdCUrk.— An articled Clerk can serve only one year with the agent of the Attorney in this Province — In re Gilkison. Ud. 7 Will. IV. Fees.— An Attorney may maintain an I'ees.—An order for the taxation of an Attorney's bill was refused, wnere it had been paid and aeciuiescedin.— Merdcn t«. -Morgan. Eu-fie r, 2 Vic. Articled Clerk. — An Attorney was struck otfthe rolls, where it was sJiown on allidavii, that during the entire period he was under articles, he was a salaried Clerk, attending a public office. — In re action for his fees in a cause which he ' Riduu'. Trinity, 2 & 3 Vic J„,.. «... 1..: _ . . ... I ,_. Jlr. , does not bring to a conclusion, if ho can account satisfactorily for not proceedinjr. —Ford et al. vs. SpafJord. Hil. 7 Will IV. Articled Clerk. — U was stated by the Court that where an articled Clerk carries on business tor his master in a place where the master does not reside, that the time so spent will not be computed in his service — In ro Mcintosh e». McKenzie. Miehs. 1 Vic. Action. — The service of a summons to compute on the agent of the def declaration, and a Ca. Sa. ill the form of action from that sla. ted in the ri plication, coiiHtitiite a fatal van. c I , .. ■ ' * » •'"^«- a luiui Villi. ing from the bail picre will ho firt aside I imce.— Hums r*. Grier. ct al. Easter, 7 for irregularity. _ McDonell r». Riitinn. Hil. 2 Will. IV. /Wi>/. — Bail arc fi.xed, when ei(;h Will. IV. Vtrnilitiir.—A plea by bail, to an action on till ir reeognizance, that after the iiwii- day« in full term have elapsed after the ing of the Ca.Sa.nfiainst their prineipnl,tht' return ofproces.sagaiii.it iheniHelve.", and j plaintifl" gave notice to the Sherinno't to the Court will not relieve theni alter. | nrrest him, ia bad on general demurrer wards. Md'herson et al. r». Bail of Mo. ! H"itis r#. Donelly, ct a!. Easter 7 Will. •ier. Easter, 2 Will. IV. Ca.Sa — It i.s 111) ground for Retting aside priKiecdings against bail, that the Ca. S IV. Enrnhnfiil.— Where the recognizance iH not enrolled until ufr.r nul tiel record ' • — — . .J ..(L. . •(»! m,j n'l ^lu against their principal has not been re- 1 pl''»ded, the plaintiff must pay the coHta of turned and filed.— Ilujrill ,•». .'\IoCurthy et al. Easur, 2 Will. IV. Bail Piece. — A bail piece may be enti. tied of the term in which bail i.^ put in, although not the term in which the writ was returnable, and may be entered before the return day of the writ, but it should »tatc in the margin the District in which the defeiidanl's plen, and ihe defendant be al liberty to ph ad de .novo Smith r#. .Morton. Trinity, 7 Will. IV. Ilenilrr.—X^M have eight days in full Term alter the return of process against themselves tosiirrender their piincipal,and the iilaitiliffis bound to stay the proceed, ings on receiving notice of the render, al- ., . ^' O ^ "• ■•■V ,T.luif-l, HI tne venue m to be laid, and if it do not, it though the costs are not paid.— Ives vi is a nullity.— Ward m. Skinner. Easier, 3 Robinson. .Michs. 2 Vic Will. IV. Security. — haW being perfected, tlie Court will not order an attachment obtain- ed against a SherifT for not bringing in the body, to stand as a security, where, al- though a trial has been lost, it has been without the default of the sheriff, and he •wears the application is made for his own indemnity.— Ward r*. Skinner. Trinity 3 & 4 Will. IV. Juttification — Bail will be allowed to justify, by the afTidavit made at the tiiuo of the acknowledgment, although an ex. ception to them bo entered, where nothing is shewn to repel such affidavit, nor to iin. peach their solvency Duggan rs. Der- rick. Hil. 6 Will. IV. Allowance.— \ rule for the allowance of bail was refused, where it was shown that, since their justification,one of the bail had absconded.— Billings,et al. ws.Loucks. Hil. G Will. IV. Pleadiiig.~A plea by bail, to an action on their recognizance, that they did not ron(/(7/HH.— ,*^enible since 4 Will IV ch. a sec. 1, a recognizance of bail condition, ed to render the defendant to the Sheriff of n District, in which the venue is not laid, is not void. Billings et al. m. Barry, et ol. f;a8ter, 2 Vic. Jiistijicatiun. — Since statute4 Will. IV. eh. 5, bail excepted to in vacation, must justify in vacation, and have not till the following term for that purpose McKen- zie et al. r*. Mncnab. Easter, 2 Vic. Co«/«.— When bail surrender their prin. cipal wiihin the time allowed after the re- turn of process against themselves, they are not liable to costs — Lewis tn, McDon. Rid. Trinity, 2 and 3 Vic. Co*/,?.— Bail who have paid the costs of an action against themselves cannot re. cover them from their Principal as money paid ; they must declare specially.— Shore vs. Burrill. Michs. 3 Vic. BAIL BOND. Alias n>i7.— Where a defendant was arrested on an alias writ under 2 Geo. IV - ■■^" "■•■•" uiiao win uiiuers uco, IV become bat!, concluding to the country, is ch. 1, after havmg entered an appearance bad on special demurrer; and on pleas o( j to serviceable process, and gave a bail IN THE COURT or queen's BB.NCH. 15 Tincnt, 011(1 no IK in (lit- 'J'tTin Inrniion, and a n from that sla. lute a fatal vari- I nl. JCaslcr, 7 >il,to an action ' nftcr the i(»ii- irprinpipal.thf ShiTiflnol to al (Joniiirrtr. — taster 7 Will. rpcognizanre nul tie! record ay the conta of ^ ilffendant be — Smith r». r t days in full ocpss npninst principal, and the pructed. lie render, al- aid. — Ives va. 4 Will IV ch. ail condition- lo the Sheriff venue is not al. !!». Barry, le4Will. IV. cation, must ■ not till the e.— McKen- ■, 2 Vic. er their prin- after the re- isclves, they tx. McDon. the coBts of ' cannot re. il as money lily — Shore ■ndant wag rSGco. IV uppearance ;nve a bail bond to the Sheriff, tho bail Imiid win setBHide withcDKta. — DDUglasht)*. I'owell. Michs. 2 Will. IV. Staying Prnrefiling*.— The court will stay proceedmgs on a bad bond after jiid^nent and execution on payment of costs, where the plaintill has delayed for three years to proceed aiiaiiist ihr bad, and they will not keeji the IkmI to ttriii!( accepted by thcni, when i.lilaiiiiDi; a Judge's ordtr in varolioii, where the or. dcr was abandoned iiiiiiiediulely after, wards, andjwas never acted on. — Youiij/ VI. Shore. Hil. 2 Will. IV. Utiiijing I'mrerdirigM. — Meforp proceed. ings will be stayed in an action on a bail bond, bail nliove iniist be put i:i iind per. fected. — fiould is. Birniiiiijliaiii. Miciis. 4 Will. IV. Baroain and SAf.E — See Deed. B.ARO.V AND FKMK. The husband must bo a parly to any deed aliening the real estate oi a married woman, under the Provincial Statutes Vi Geo. III., ch. 5, and ;V.t Ceo. HI, eli. 3, and it is not suflTieient for liini to Higii and seal the deed, he must be expressly nam- ed in it as a party. — Doc liradt in. Ilodg. kins. Michs. 2 Will. IV. Battkry — See Assault and ISattery. BILLIARD TABLES. Semble that the Corporation of ihc City of Toronto has a right to suppress all bil. liard tables within its jurisdiction Rex e». Inspector of License.', Ilyine Dir.triel. Michs. 5 Will. IV. BILL OF EXCHANGE. Where tho plaintiffs, who were bankers, requested the defendant to draw two bills on England for their aocomtnodnlion, which he did, and the plaintiffs indorsed and sold them here, giving the defendant a draft of the same amount payable in England, to meet them when due, and the defendant for tliat purpose transmitted the draft to the drawee of his bill. Vie. It is not nercfsary to present a bill of exebaiiue drown, payable afterdate, for acceptance, until it is due; and when there hua been no preaeniiiient at nil, a proniiso to pay the ninouiit of the bill will not be Huliicieiit to chari,'e the drawer, unless it be made by liini with a knowledge of ihu ildiiuli.— Richardson, ct al. t*. Daniels, et al. .Miclis. 2 Vic. Where a bill of exchange is made pay. able at a iiarti.ular place m a foreign country, am! there is no evidence of pre. senlnii'iit there, nor of the law of that country on the subject, the necessity for presentment must be determined by the Inw, as it exists here.— Buffalo Bank r«. 'I'ruscoll, et al. Michs. 2 Vic. Parole evidence cannot be received to shew that a bill of exchange accepted, payable three days after sight, was not to be paid till a further time had elapsed. Bradbury r». Oliver. Hil. 2 Vic. A commission of 2i percent, on draw. ing and accepting bills of exchange is usurious, and will not be allowed. — Brad- bury rs. Holion. Easier, 2 Vic. A notice that a foreign bill has been re- turned protested ond unpaid, is a sufficient notice of non.nceeplance ; and it is not necessary to send o copy of the protest with the notice ; and a foreign postmark on u letter is prima facie evidence of tho time the letter was mailed. Ten per cent, damages, under 51 Geo. III. ch. 9, sec. 8, cannot be recovered on a foreign bill re. turned for non-acceptance ; nor can re. exchange, unless declared for specially, although postage may, under the count, tor money paid. — O'Neill rs. Perrin. Michs. 3 Vic. BOND. To debt on bond setting out the condi. 'inn, and Qssiirni.'ig breaches, the. t'.pfesn. dant craved oyer and demurred, and tho plaintiff, having succeeded on the demur. 1« A DIGEST OF CASES DETERMINED r<-r, entcrpd jiidt'iiifnt for the mijount of llir |)fiialiy in the li,,n(l ami co.«w, mij w. •upd cxeculion. The (Irlindant then moved to Brt at.i(lo the |>ro.:. .dinKs, bill thn plaintiir dad leave l.. aiiuiid by mib. ^'lHltmJ{ an ini,.ri.>.-iil..ry, for llie final judfjriicnf, and .•nlrrini,' an award uf vc iiirp to H.HSi.Hs ilio dariiayci-, and iii.|uirc of furlliir brtaclii ;., alilion^,), thrfp y^nrn |,„J j plapscd from llic pnlry of tlic .jiid«in..|,t IJouglasa r», Towc II. Triiiily, 1 & M Will ' Trovpr may l.p maintained bv llio obli. gee af,'aiiif.t llio obligor of a bond, who hM wrunKfully torn off hiH s,al, and damriKPs |„. r.rov.rcd to ili.; ainoiini of the pcnnlly.-ljank I'. C. vs. Widnier. IM. 2 Will. IV'. Where, in debt on bond for -lic payment of money by two instalmenl;., only one was due when procejjs wu« issued, but th. plaiiuiir awifjiied breaches for both, the lime for the payment ,.{ the t^econd hav- iiig arrived before declaration. Held, that he could aascss his damages on both breaches, and seinble in such case the declaration is the commencement of the action. — Leach vs. .Stevenson. Miclis -l Will. IV. To debt on bond with a condition, in which It appeared on oyer that the com. mon conclusion, "then this obli-alion shall be void," had been omitted, the de. fendant pleaded, in avoidance, non-jier. formanco of a condition precedent, as if the bond had been regularly concluded, to which the plaintilT demurred generally. Held, that the plea was good.— Day rs. Spafford Hil. 6 Will. IV. Partial performance of the condition is no answer to an action on a bond, and a plea to debt on bond, with a condition to convey land in the lifetime of a testator, brought by his executor, must negative the request of a conveyance by the heir or executor, as well as by the testator.- Horshey Adam t*. Warren. Hil. 7 Will. Where a bond is pleaded with a profert, the admission of its execution under a' Judge's summons for that purpose, does not dispenae with.the necessity for its pro. duction at the iriaL-Lcalio r#. Leahy. Mil. 7 Will. IV. Where, in a bond, with a condition U> convey land, no tun.,, is fixed for such con. ' veyante, but the tunes for the payment of the purchase money are siattd, the pay. uieni of the rmmey is not a condition pre. cedent to the execution of the deed WiLwii M. Uickie. Easter, 7 Will. IV. The obligor of a bond, with a condition for the conveyance of |„„d, must prepare and tender llie conveyance, unless the eon. dilion be to convey by such deed as the i'ligee shall reijmre.— Harrison r«. Liv. ingsione. 'I'rinity, 1 and ii Vic. W'here the defendant agreed to lend the plaintiff £2,000, to be advanced as it miL'ht be re.juired, and received from the I phiiiiiitra conveyance of lands to secure tho advances, and gave buck a bond reciting ihe agreement, and binding himself to re. convey the lands on the repayment of the Slims advanced on a certain day, and the defendant, before that day, made further advances to X10,000, and received timber, &c., on account to X7,000~Held that the l>ond was a continuing security, and that the defendant was not obliged to rc.con. vey, on the payment of the i?2,000, first advanced.-We.ls »». Ritclue. Easter, 2 Vic. An obligor, who is called by a wrong "iimc in a bond, but executes it by his right name, must be sued by tho name in the bond.— Kctchum et al. vs. Bradv •Michs. 3 Vic. BOM) TO THE LIMITS. The plaintiff must assess his damages after interlocutory judgment, in debt on l'">i'l to the limits.-Gallagher vs. Stro. bridge. Easter, 11 Geo. IV. A blank having been left in a bond to the limits, which was afterwards filled up with his consent, although not in his pre. sence, held no variance on the plea of lion est factum.— Leonard vs. Merritt Hil. 1 Will. IV. A bond conditioned that a debtor shall confine himself to the limits of a gaol, ia void, if, at the time of its execution, the debtor was not in custody, nor on the limits, and where the defendant sets out the IN THE COLKT OF QlEEx's BE.NlII. U.'8iilio r«, Lenhy. ii'i a condition lo ixtd for such con. ' IT ihc paynirnl of slnU'iJ, ihe pay. t a condition pre. of the drcd.— •r. 7 Will. IV. Willi n condition id, iiiiiat prepare <•, unless the con. '''f°I'"'i"". "'at admissible ovi. operates as a d.sclmrgo of both.-Fisher I dencc has been r.'jerted by the Jud^ro of r.;^DanioIs ct al. Easter, . Vic. j that Court, the proper ..Le in su' h a Where u writ of execution against case being to tender a bill of exceptions goods had been issued, but not returned | -Tully r*. Gla.^. Easter, 3 Will. IV. ' and filed within a year after judgment, a Capias ad Satisfaciendum issued after the year without a scire facias to revive the judgment, was set aside for irrogiilari. ty — Sewell M.TIiompson. Easter, a Vic. CARRIER. A forwarder is a common carrier, and 18 not liable for loss, arising from the act of God, or the King's enemies Smilli tJ*. Whiting. Trinity, 4 and 5 Will IV A writ of certiorari may issue in this Province under 19 Geo. III. ch. 70, to re. move a cause from a District Court into the Queen's BcMch, (or the purpose of issuing execution into another District.— BuUhvin et al. ts. Roddy. Easter 3 Will IV. An 'attachment will not be gran::>d against a Judge of a District Court, for not obeying a writ of certiorari, unless it he shewn that he is acting contumacious. Tii,„ „ r . — ""• "t' " "I o"g eoniumacious. „os!rr.°.'irr'"'""^T''''"''" ''-'^'^ J-,go Niagara District Court. in possession of and navigated by the mortgagees, are not liable for the lo.ss of goods shipped on such vessel, and if they were liable, although the form of action were case, yet as ilieir liability would be , J , ■• """I" I" vrrnornri. — l^oppin lounded on contract, aud not custom, ijic ! iv, 6 & 7 Will, IV. ilil. 4 Will. IV. The Court will not direct how proceed, ings are to be carried on, after the rcniov. al of a cause from a District Court, by cerfiornri— Copping M. McDoncll. Trini- i Uiit would ili*. D« M, Mint et tl. urge ilio owncrx)! :>(l.i from port to IS from the non. ' Ifoiiilo, tu fihow by tlic nm.sier uf ^liicti tiicy wvra vi'ii, during th« he ciiMMignffR.— . I. ti Will. IV. riu.v. lU. "I to remove or. to ili« txpendi- nd asRcfsineiiti, loriR-y (ictierul, ustivci of New. r mot be grunted r a dcfpiidant, 1 iho Queen's . ch. 70 gee. 4, to judgmenis Flancgan. Ea». not be granted n Iho DiH rict ifih tho C'jurt idiniasible evi. tho Judge of rse in such a >{ e.vceplions. J Will. IV. ' issue in this ch. 70, to re. ct Court into e purpose of cr District. — Mter, 3 Will. bn grani:'d ;t Court, for ari, unless it )ntiimacious. istrict Court. low proceed, r the rcniov. t Court, by onell. Trini- I.V Tnt lOUKT OF QrEE.v's Bi:.N cor.soviT. A cojnovit may hv tHkiii in a rntmo • lihoiinh no proooM has iwtird, nnd n dr "• 19 AfiiT » pognovii rriven bv a principal and hi* mireiim juinilv, the Court will not K«t a-'idi' njii.k'iiiirit rril.rrd on it agamat rendanl.whohiiH^'ivrn n r,.i,rn„vit«iih.Mii:iill. I"i'mih.. tmir li,i, h,...M giv..|i i„ ihe pror,.,,, wi,h n .lay „( r„..cut,..n u, « rer. ; ,.n..n,,al. «„|,u,„ ,l„. r„„«„„ uf ,hc ,ure. Htn dny, „,.,>• f,r r,rr..«.,.,ron a i-upin. nd j I.c«.-Muwul m. Switxer et al. .M.oll.. 3 reopondi ii.liim b.f.irc that day hr»» nrriv. ed, ihf inkinn of a cognovit notdrprivin? the plniiititrof hm u«unl rcinr(li.'« \V,il. ton lit. Hayward. Kastcr, •.> Will. I\'. An ailachiiirnt wn"! nfiir d lu^ninst a wiiiiei* to a r„gni.vil, who would not •wear to iu ex-cution, no order or rule of Court having been nmde for him to do lo. —Ham t». Ham. Earner, 3 Will. IV. The Court rrliisi'd to nllow judgintnt to bo enlrred on a coi.'ii..vit, more ihaii fifteen years old, whore Hltho;ii;h it was ■worn that a large debt wan due, yet it appeared that the plaintiff had once nc. cepted from the di fciidanf, an assignnicnt of properly and given a di»ihnrge of the action, ulihoiij;li ihc pro|iiTty proved unproduclivc— (Jraiil tin. IJxors. of Alcln. tosh. Lasler, 5 Will. IV. Where a cognovit was given with a slay ofexecutiontoa future day, and a memo ramlum was endorsed, ilclirring the pay ment of a part of the debt fur a longer time, and at the day judgment was entered for the whole ani main, luiii jii acliDii lor iniiiity liaj ami rcctlved li.' ilitir ii«r, agiimal ihr iiirnuii tiir whum Hucli iii)ii« were ilmcuiiiiitd, nrid lo whom for tuch work, llin coiilracl lii'ist br pro. duced — W'all»cc M.' MiiMon. t««itr, 6 CONTJIIBI'TION. Oiip oi .wvpml dciindnntN in iiMiinipfii, who linn [iHiii till' whiilc .iiiinunl nC ihr da. j ~ "" " u m wn.jni liUKi'H iiiidrr nn rj.iiHi.ifi, i.< I'liiiili'd lo "'"""'y »»'«» odvaiiced iipoii (In in — Rank reouwr rdiiinliiMi Ml irimi iti<' oiIht dr. "f •'^'""'rfal r». Beihiini'. Ilil. (i Will. IV. tiMidnntu, niid in an iir ti.ni (..r .■.iicd cuiitri. ; Wliirc n rorporulujii liad ciilrred into a billion, ihi.' nauliiniy nt iln- jiiil);iiuiii I'ontrnri undrr ipul witli llip plainlitf, fur in the onuinal Hilioii niiiiiiii 111' <(in-;i'.'iera :,: Uiis Province. Coopt: .?, -'i, ..ii.,iirt Company. Eister, 1 WiH. V', A ijri'ign Cv^; 'oiation, fuch as u Bank, cannot maintain an action, upon piomis. COSTS. < >j l/ir rfny.— The rule for costs of tho day for not procci ding to trial, is obsoluts in the tirst instance — ChiMliolm t». Simp- son. Miehs. 10 Geo. IV. J'lill I nitt — 'J'lie master is not to rp. fuse to lax full cosis, merely because ths amount of the verdict is within the juris- diction o( the OiHtrict Court, although ilio Jiulne, who tried tho cause has not eerli. lied,— .McMurray o*. Orr. Michs. 10 Geo. IV. Full Co»ts.~Thc plaintiff was not al. lowed full costa, where in an action of covenant he recovered only jCS, -..h th,x .fiul.;t Hid not ccrtity.— Gardner »», 8iod- dard, Easter, 11 Geo, IV. I'lill Cunts — Where the Ph.,:jair ^nd Defendant, and the Plaintifl"'s witnesses, resided in ditrurent Districts, full costs were allowed on a cause of action witliin the Jurisdiction o( the District Court Hugill t». Driscoll. Michs. 1 Will. IV. Full Coats.— A certificate for full costs on a verdict, wliich is for an amount with- in the Jurisdiction of the District Court, must be moved for immediately after the trial. — Fnjls e' al. vs. Lev.i.i. F.n?.;rr 1 Will. IV. Patton vs. Williams. Hil, 3 Vic. IN TH» COIBT OK tJUKU.'^'s UKNi'll. «il ml ili'.poiinied bjr Haiikmu liumtir'i {li ilipv iMiv main- y liiiU mill rert'ived !* punuii tor H'huin iti'd, nnit til w'lioin i|i»ii iliriii — 'Kmik .■. Ilil. (i Will. IV. had riilrred into a ill llir pinlnlilf, fur Ham wurk, wliirli il Irniii liy ilicir or. i( ilio (ilnmliir. — luld lir lor ll)C vii. ilir till' milHtilutcd mid KivorNaviga- ii Vir. iiiiiiiaiii asKumpiit iidiMi ail txrcutcd lio cuiilrHcl in ill ,sinr»«. — KingHiiin 111) vs. I'hillipt, — II' for codig of iho trial, iH absolute liiiliuliii T». Simp. r wtpr is not to rp. ercly hecause the 1 willlin the jiiris- 'uurt, although ilio use lias not certi. r. Michs. 10 Geo. ntiir waa not al. ! in ail ccfion of JidyjCa, •,!,. th.< Gordner b^. Siuil. V. the Pluinii/r and lintiff's witnesses, stricis, full costs 3 of action within District Court,— hs. 1 Will. IV. cato for full costa • nn amount with. B District Court, ediately after the linwi.r. K.ir.trr, ] Iliams.Hil. 3Vic. Hftciitl /«ry.— TliiiooiiU i.f n .|)e(ii| Jury, an' ri>»n m the raiii>r, ami nutCdniH of ihr dny — Whilflicnd r». Ilmwii. Hij. a.w.ii. IV. FullJ.'u»lt — Whfrp thi^ iiiionnt of a proniiinury iitjlc, uritfiii.illy li. yoiid ihcju. rindirliiin of thi) f)i>.tr. ijouri, had been redur.'d wi''ilri if, hy piHiii'.,,i» after ac. tion broinrn, the pl.iiniiH waa allowed full cosw.— Kilborii M. Wullaco. Miih*. 3 Will. IV. ^1/// <'wil» — Where ono of the plain. ti/T''i ',^•:i^ the Judirr of the District Court, o( the District in which the di Iciidnrit ro. aided, fidl costs were alluwiil, ullhou4,h the cause o( action wn» within the Dimrict Court jurisdiction Jonesot al. m. Wing. Hil. 3 Will. IV. full Cimli. — A'plalntifTis not entitled to fiill^ciists as n niairir uf riifht, where he rucovers, aftor juilKmeiit by dilaiill, an amount apparently wilnin the jiirisiliction of the District Coiirt,,_os the ninth rule of Court of Kastir Tern, 11 Geo. IV, in •tich case.requires the order of tlu Court, or of a .liidire, fur such taxation.— McGill r». Stull; I'erric ct al. ra. Yuiin;,'. Kaatcr, 3 Will. IV. Of the ilai/ — Costs of the day were al. lowed t(, a defendant, who, by Birreement with the plaintifl", accepted short notice of trial, and the pluiiitilf did not proceed to trial — pursuant thereto.— Harris vs. Haw. kins. Kaslcr, 3 Will. IV. Of the day — Where the plaintiir, hav. ing given notice of trial, did not enter his record with the Clerk of assize in tinu , but the defendant notwithstand'ng agrctil tof'O to trial if he -vcre rriuly, and air. r ha ii'Cf A tained the plaintifV's witnesses more than a week, at last determined not to go to trial, he waa refused the costs of the day.— Crawford r». Cobblediko. Michs. .5 Will. IV. Full CoatK — Where there arc issues in law and fact, and a venire as well to try the issues as assess the damaijes, and a ver. diet is rendered fur the plaintiff, for a n amount within the oirisdiction ot (he Di>. trict Court, a certificate for costs must be applied fo- .: the trial, and an order cannot be made by a Judge, a.^! in ca-«a of us- i ae^menta after judgment by default, for I the taiaiioii ii| viuh rotila.- Maliony rt. Zwick. Hil. .5 Will. IV. Arbilralinn — Where a cinum it refer. red to iirliiiiaii.in by order of .Vim Pniis, and till' arliiirators award a aiini within the jiiriiidiriion of the Distm-t Court, the Court or II Judge may grant an order for full costs, under the ninth (feiieral rule of r.aster term, II Geo. IV.— KImoro tt. Colinan. .Michs. ti Will. IV. Of the ilui/. — Where u cause, not ready in its turn for trial, was put to the foot of the docket, with thcconaent of the defend, ant, and was not tried afterwards, costa of the day were refused.— Itank I'. C. r#. Covert et al. .Michs. G Will. IV. Of the ,/,iy._- Where the plaintilf's At. lorney sent notn e of coiintemiand of trial j to his agent in town, but it arrived too laio I for service, and the dcllnilanfs wiincMca j attended for the trial. H.|d that the ex. ! pense of such witnesses was rightly al. ' lowed in the costs of the day.— .'^palFord r#. liuchanan, .Mi. lis. G Will. IV. I Attonify.—W'hurti a plaintifT, on At. , toriiey, brought assumpsit, and proved a cause of action to i,-JO, he was allowed full costs, although the Jury rejected all his claim but three shillings.— King m. Such. Hil. 6 Will. 4. Srt off.—WhvTc a defendant put ofT a trial on payment of costs, and never Imv. ing paid those costs, at a 8ulise(|uent triol obtained a verdict. Held that thosecosts, could not bo set off against thedefcndanw I general costs, there being no affidavit of I the defendant's insolvency. — PotLs t>#. Doyle. Daster G Will. IV. Court of lifijueatg.— Where a verdict was taken subject to n reference, and the [ arbitrators awarded £10, reducing only I the price and not the items of the account [ for the recovery of which the action waa brought, a suggestion to deprive the plain. tiff of costs under the Court of Ucqucsta Act was refused.— Stratford r». Sherwood. Trinity, 6 and 7 Will. IV. Br etch nf prumine of Marriage.— In an aciiim for breach of promise of mar. riage, one shilling damages will carry full costs — Jetlery va. Lawrence. Micha. 7 Will. IV. 88 A DIGEST OF (ASES Dr.TERMINED •■r Full CcH,.-.l( a J.dge at Ni.i Pn^s | Full Co.M.-Full cost. w«re allowed on orders a ceruficaie lor full cosii?, on a ve. diclap'parcntly wiiliin tlif jurisdiction oi the District Courr, it mav be druun up ai any time— Linioot vs. O'Ntill. Mirhs. 7 Will. IV. Full Costs.— VuW costs wiil not be n a prumiirpory note l,ir XIO, where the de. lenclaiit left the District where he made thn nnic, and was residing in another— IVnin et ai. r*. Carson. Trjnity, 2 and 3 Vic. Several hsung.— Where the defendant , ... — .==«ro. — i.uriD iiiB ucienaani lowed on a cause 01 actior.. willnn ilm in . i ■ .- . ri.,l,r„.n , (■ ,1 r> , r ' "V J"- l"ok iMMP On Some of the counts of the risdiction ot till- District Court, unc,sslhc„i,.i„„«-. i i • , ' ' """• plaintiffN dedaranon, and demurred to cause of anion aro.se in tio D strict in i , ■ , uistrict in ,1,0 rest, and ju-lgmnnt was against the which the plaintilF resides, or the dcfen/ry— Where a subsequent deed was regij-toied first, a prior one from tho good title, no damages can bo recovered for improvements or the increased value of the land, the purchase money and in. terest forming the measure of damages McKinnon vs. Burrows. Trinity, 4 and 5 Will. IV. Where a verdict would be conclusive of the parties' rights, the smnllnoss of the damages is no objection to .setting it aside. — Sopcr vs. March. Hil. 6 AVill. IV. Where A. purchased a lease from B. and B. covenanted with him to repurchase at the end of three years, for a greater price than he paid, and after the three years had e.xjiircd, A. tendered annssiun. meiit of the lease, which B. refused. Held that in an action on the covenant, A. was entitled to recover as tlie amount of da. niagps, the price agreed on by B. for the repurchase.— Gibson v*. Cubitt. Easter 2 Vic. DEBT. Debt lies to recover penalties nnder the ho having in the mean time convoyed to a third party for a valuable consideration without notice.- Doc Nellia ts. Mattock. Easter, 3 Will. IV. Bargain and Sale.— The registry of a deed of bargain and sale, relates back to the time the conveyance was made, so as to give the purchaser a good title from that period.- Doe l^paiFord rs. Brown, et al. Easter, 3 Will. IV. r«««. The Registry Act here has been no ; and since Stat. 7, a derd nf hsr- iquiro registry nor IN THE COURT OF C &, 7 Will. IV. /Ve»«m;;/io7i. — Where a conveyanre ought to have been made, the Court will presume that one has been made after a peaceable possession for twenty years.— Doe Willson, et. al ts. WesscUs. Trinity 6& 7 Will. IV. Refrigtry.—Thc ccrlitlcate of registry indorsed on a deed, is conclusive of the registry, and cannot be impeached by evidence that it has been irregularly done. —Doe Russell vs. Gillelt, .Mi(lis.3 Vic. DemITRRER— See Pl.EAniMi.rRArTKE. Devastavit— See ExEriTOR &c Adminis. TRATOR. DEVISE. - The wordf^, in a Will. " I jmve already given to my son, John, lot number one," do not constitute a devise.— Doe Smith rs. Meyers. Ilil. 2 Will, IV. Semble, that a devise of lands to the testator's wife for life, to be nt hrr full and free disposal to whom and whensoever she pleases, and out of which tho testator's just debts are to be paid, gives an estate in fee, and not for life, with a power of sale. — Doe Humberstono vs. Thomas Hil. 3 Will. IV. Easter, 4 Will IV. Where a testator, after devising to his wife, for life, all his real estate, stated the lots of land of which it was composed, and amongst others the t'ront hall of a |oi, of which only the rear half belonged to hint : He leld, that the wile took a life estate in the rear hall', imd. r the general teriiis of the W,ll.-|)„e Taylor .•». Peterson. Eas- ter, I Will. IV. lutancy is not nn inevitable dillieulty within the fifteenth section of the Registry -Vet, so as to preclude the nenssity ol an infant devisee, rei;isieriii« the Will within SIX monihs Iron, the death of tho devisor, to avoid tt !f. may be sold.— Thomiison in. March, ct al. HiJ U Vk^iil. IV. Trespass lies for llie .sale of projicrty seized as a distress, and allowed to remain on the premises more than five days afier seizure, but the full vuhie of the property cannot be recovered. — /4. A distress made more than six months after the expiration of a tenancy, is il|oj;al, and a continuation of the tcnunf y will not necessarily be implied, from the parly's remaining in possession of the premises, without any act to shew the nature of the liolding.— Sopcr ts. Brown, et al. Hil. ,3 Will. IV. In case for an irregular distress, if there were any irregularily, as if there were no appraismeni, the plaintitf is eiiiiiled to a verdict for nominal damages, although no damages whatever be proved. — Maguirc VI. Post. Ilil. 6 Will. IV. Where a landlord distrained for rem due, and also at the same time fir rent not due : Held, that as the distress was legal in its inception, but excessive, that case, and not trespass, was the proper remedy, — Kendrick vs. Lee. Michs. 3 Vic. DISTRICT COURT. Sec also Costs. Injustifying an arrest under mesne pro. cess issued out of the District Court, it must bestated that an aflidavit of debt for a sum certain was made and filed, and a replica. tion that no such aflidavit was made and filed, does not contain a negative preg. nant. — Ferritset al e». Dyer. Hil. 6 Will, IV. A Cerlioran canno. be granted to re. move a judgment for a defendant from a I District Court to the Quern's Bench Gregory t: Flanagan. Easter, 2 Will IV. .\ writ of CVniorari may issue under 19 Geo. III. ch. 70, to remove a judgment from a District Court to the Queen's Bench, to issue Fxocuiion into anoihor Disirict.— Baldwin el al. r#. Roddy. East. er, 3 Will. IV. An attachment will not be granted against a District Court Judge for not obeying a writ ot Certiorari, unless it be shewn ihat ho is acting contumaciously. — In re Judge Niagara District Court. Mil. 4 Will. IV. Where a Judge's order is necessary to. hold to bail, an arrest cannot be made in the District Court,— Ferris m. Dyer ot al. Hil. 6 Will. IV. Smith c«. Jarvis. Hil. 3 Vic. DOWER. In dower the plea of alien ne may be pleaded in bar, and a replication thereto need not state a venue to the place of birth within the allegiance, nor slate of I what parent nor when the demandant was born.— Robinet vs. lewis. Hil. 10 Geo. IV. The Court refused to arrest the judg. ment, because tli? teni'nt in dower was stated in the declaration to have been nttarheil, instead of vumtnoncj. — lb. Eas. I ter, 11 Geo. IV. I In dower a suggestion may be entered afier final jiidiiment, that the husband died seized of lands, and enquiry shall go cor,. cer.iing the damages since the death, al. lliough the tenant is the alienee of the heir.— /A. Trinity, 11 Geo. IV. After judgment of seizin in dower, on a writ of enquiry the mesne value of the land, between the death of the husband and the obtaining judgment, should be assessed ; the demandant may also assess as damages the amount of her taxable costs in obtaining judgment of eeisin, exe. cuting the writ of Hab. fac. seisinam, and her necessary travelling expenses incur, red in prosecuting the suit, and her resi. dcnce on the premises in the family, and at the expense of the heir at law for part of tne time between the death of her hus- band and her recovery of judgment, ianot I Ill) Quepn'd Bench.-- nan. Easier, 2 Will. rari mny issue undrr to remove a judgment urt to the Queen'* ocuiion into iincihor t al. t», Roddy. East- ivill not bo granted ^"ourt Judge for not Tijorari, unless it be tiiiij contumaciously. i{!ira District Court. )rdpr is necessary to. t cannot he made in Ferris c^. Dyer ot al. nth i;«. Jarvis. HU. •ER. of niien ne may be I replication thereto uc to the place of inncc, nor state of irn the demandant i!». Lewis. Hil. 10 to arrest the judg. iii'nt in dower waa ition to have been mtnoned. — Jb. Eas. )n may be entered at the husband died iquiry shall go cot,, ince the death, al. he alienee of the Geo. IV. iziii in dower, on a esne value of the th of the husband gmcnt, should be nt may also assess nt of her taxable lent of i'eisin, exe. fae. seisinam, and g expenses incur, suit, and her resi- n the family, and sir at law for part death ot her hus. f judgment, ianot IN THE COURT OK QUEEN's BENCH. 27 A wnt of Capias ad respondendum is ' ' ' " not the first or original process in dowor. I — Phelan vs. I'helan. Easter, 1 Will, IV. An iiilant demandant may sue in dow. er, and if an infant tenant bo sued, the parol is not allowedj'to demur.— /A. In dower a plea of noii.tenure is not necessarily a plea in abatement, and it may be pleaded either to part or to the whole of the lands demanded, and where « plea stales that the husband devised cer. tain lands to the demandant in bar and ■atisfaction of dower, and thut she agreed to the devise, it is sufficient, without seU ting out the words of the devise, aliter, where the devise is not in express terms in bar of dower— Hreakeiiridiie vi. King. Easter, 5 Will. IV. In dnwer undo nihil habet the writ of grand cape must be served fifteen days beiore theretun — Richardson ^ftVazer et ux. Hil. 6 Will. IV. 2 / It IS not necessary to serve the sum- mons in dower on the tenant on the pie. mises. Honsburg vs. Emz. Ili|. g will. In dower the demandant is entitled to datnage-i only when hor husban.l died Jiiiltrmnit — Judifinent canno! bo en. Irred against the casual ejector, until (bur (lays have elapsed from the lime the rule forjudgmen: nisi is taken out of the Crown olTue. — Doe Harlcy r». Roc. Trinity, 1 and 2 Will. IV. Consent Rule — Where the |es.sor ol . the plainiilFclainicd the land in (jueslion i as part of otic Ijot, and the tenant claimed : it as part of aiinih.r Lot, ibu tenant was allowed to eiiier into the consent rule : without confessini; possession of ilie pre. ; mises in the declaration Doe Canada ; Company vs. Roe. Trinity, 1 and a Will ilV. I Crown Lmse — A lessee of the Crown, for a valuable co.isideralioii, verbally as. signed his lease to H. who went into pos. session of the lands in the lease, and after some years died in possession, having re. ceived the original lease from A., A. after. wards died, and the |ilaintiir his adiiiinis. trato.' brought ejectment nguinst tiie de. fendant D.'s administrator. At the trial the plaintiff put in an exemplification of the original lease, and the letters of ad- ministration to him, and the defendant. 0-- ~...j ,,.,y.,, m;, ijusuana aiea I ■■' ■.■■u, uim mr ueiendanr, »eized, and under the plea of ne unques ! ''"^''''" P''''^''^ ''"-' f^^f-w as above, and that seisin, possession by the husband ispriino facie evidence of a seisin in fee.— Lock. man vs. Nesse. Easter, 7 Will. IV. If a writ of dower be served no procla. mations are necessary under 31 Eliz. ch. 3. — Bissonett et ux vs. Radenhurst. Michs. I Vic. lie • B.'s death the lease had been taken out of B.'.5 trunk, and that the plaintilfhad aince stated it was in his possession, gave in evidence a notice to produce the lease, which was not then done, and al the close of the defence, the plaintilf produced tha lease, and the Jury found for the defend. EASE.MENT "*" *■ '^'^^'^ °" '"''''"" ^'"' " new trial, that An casement can only be granted bv i"'" !'"^- '""" ^""^''"^ '" P^'-=""""^' « cd, and if given bvDarol,n,,v !,„.„,../ I '';*'"'' '"«'«"'"'^"' "''he lease iind.r the circumstances, and the rule was refused. —Doe Murphy vs. Mui: ollund. Trinity. 1 and 2 Will. IV. Mortg:agc — A purchaser at sheriff's sale of lands sold on a judgment and exe. cution, subscciuent to a mortgage by the debtor in fee, cannot recover ugainst the mortgagee in possession.— Doe Richard, son vs. Dickson. Hil. 2 Will. JV. Z«H,//or(/. — Where A. defended, as landlord in ejectment, against a purchaser at sheriH's sale of on expired Crown deed, and if given by parol may be revok ed at any time.— Crysler vs. Creighton Easter, 2 Vic. EJECTMENT. Amfmlmcnt—An amendment in a do. claration in ejectment, in the nai.ie of the Township in wiflJh the lands, for which the action was brought, were situated, was refused.- Doe vs. Roe. Easter 11 fJeo, IV. Evidence of Pedisrree.-ln ejectment between a person claiming as heir, and a 38 A DIGLST (ir (ASKS IiKTKIlMINlil) Ci |i iiHi', Hulil n.K 1)1 lont'iti!; to li. tiy itSHii;ii. iiirrit : lli Id, llmt nlur proof of iin cxciii. fjliliriiiiuii of till' li',i-(, till' jii()_'niifit, /irri Jiiriun, iiiitl NJirriil '.1 dci d, a iio'iri' to pro. diKM,' llif orii;iiml Iriuic and iifMu'iuiicnl, without spirilyiM^r pnrtuuiiirH, or Blirwiiif,' them cvtT to havo hccii in A.'.i poK»i'»tiiori, was siitlli.-iiiil lolcl ill sci'oiidiiry iividrriri' of till' Msj-Ji^niiiirit to II,, mid iliul hm A. Khrv.i d no lillc, nor that hi' h:id i;V( r liri ii ill piLMsi s.ijoi), iliii Hiinic pr-'s'iimpfioiiti phoiild III- Hindi; in f'livnr of ilic purrha-cr, HH if hr hiiil III in jrf. lo coiKctid with llir (li'litor liiinsrll. — Doe Mn^'uirc vs. Di'iiiii.s. Trinity, a vt^' Will. IV. Serrral Tniiiiitn. — .Scvirtil !riiiiiits,wlio occupy si'pariilo iipiirlnirnlH in n hoiisi', may be Kiird jolnily in i ji cliiu'nt. — Dh Bell r.v. Roo. nil. 3 Will. IV. JNVir Trial. — Wliirc ihr pliiintilf in rji'Ctnicnl wnn non.i^uilrd, no one iippnir. ing at tlio trial to confiss Irasi', rnlry and oustiT, till; Court on an allidavit of incril.", nnil that the di fi'iiilaiit'a titlu deeds had been sent hy post to Counsel to make a do. fence, but liud arrived too Inic, set aside the jiidpnienl and writ of possession, and prnnteila new trial on payment of costs. — Doe Clark et al. rs. Metjueeii. Hil. 3 Will. IV. Evidenrr. — The admipsinns of n real person beiii;,' the plaintiff in ejeclnn'iit, eaniiol he jriven in ividenee against the lessor, especially if he he an infant. — Nicholson dciii .Spiiil'ord vs. Roc. Hil. 3i Will. IV. j Evidence of Prdisrce. — In ejeetmenl j by u son and heir at law , eviiieiiee of the i inarriarre of his pareins, and of hi.s ideiiti- 1 ly, should he K'^'en, to prove pedigree, — j Doe Iluinberstone it. Tliuinas. Hil. 3 Will. IV. Sheriff's Deed. — In ejectment hy a! purchaser of lands sold under an cxecu. | lion, the sheritf's deed \s prima fane evi. dence that the writ was delivered to the (-herifT and the lands seized and sold under it, and the iilaimilf may recover an undi- vided moiety, where his declaration is for t!ie whole prrmi;-rs.- Doc- f^paflbrd Vs. Brown ct al. Easter, 3 Will. IV. Release, — A trustee, lessor in ejectment, cannot rehasi- the action.— Doe Hoycrrt. Claim. Enslcr, 2 Will. IV. Drfeiire. — The ili (eiidant in ejectment may shew several matters nf,'ain.st the phiinlilf's riirlit t.i recover, iis ihat the title was ill a third person, and failing in that, that from \i\» position with respect to the lessor, he was eiilitli'd to n notice to luit, or a demand of possession. — Doc .McDon. I II, et al. rs. All Dougall. Trinity, 3 4, 4 Will. IV. Ciiiisent IJnU. — Where n specific lot was iiieiilioiud in the declaration, and the ilrfendant having entered into the eonacnt rule i;iiiirally, the plaiiitilf treated it bb a iMillity, and signiil juiliiment against the casual ejeelor, the Courl set aside ihe judg- ment for irregularity, and held that an uf. tidavit on which the defendnnl moved, en- tilled aa if the consent rule were in force, was correct. — Doe Thompson vs. I'uU nam. et al. Mich.-). I Will. IV. Entry. — If, at the death of the tenant at will, his heir enter, such entry is tortious; and if the heir die , and his heir enter, the original owner, or his heir, will be put to a right ; hut the possession of a mother will not be considered tortious as against the heir being her own child, hut shall ra. ther be treated as the possc^sionof a guar, ilian.— Doe ■Vlarch rs. Einpcy. Eanter, 4 Will. IV. T.nndhtrd. — A debtor in possession f lands which have been sold for his debt at a slierifT's sale, is ipiasi tenant at will to the purchaser, and cannot dispute his title; and a third person defending as landlord, hut showing no luivity between the debtor and himself, nor any connection with the debtor's title, stands in the same relation to the purchaser, as the debtor himself. — Doe Armour rs. McEwen. Easter, 4 Will. IV. £no .McDon. riill. Tnniiy, 3 & 4 lure ft (specific lot ilcclnnition, iind the red into ilie consent iiiiill' irciiii'ii it M a clu'iMint atrniiist the rt HL'i asiilc till' juilg. iind held tiiut an af. •fciidnnt moved, en. rule were in force, riioiii|won »». I'uu Vill. IV. Liitli of the tenant at ■li entry i.i turtions; 1 his heir enter, the lii'ir, will be put to 's.«ioii (if a mother tortious as against I child, but shnll rn. losse.osionof a j,'unr. Kinpcy. Eunter, 4 jr in popfiession f sold for his debt at .si tenant at will to lot dispute his title; ■ndiuf^ as landlord, between the debtor onnection with the I the same relation c debtor himself. — •en. Eaater, 4 Will. Statute of Limits. ntinuea to run, not. sei|ucnt disability, is in possession of 10 has never enter- ic, so as to enable II ejectment. — Doo Easter, 4 Will. IV. , in ejectment by a mortjjngce, the tenant claimcil pos,')c."Hioii tiiidor a Iciuse from the niori;;a),'or, and re- fused to attorn to tiio morlxu),'ce, (who do. niandcil pcusciwion,) niiil tihewid no leaie no- Btiy cerium holding ; li. Id, that he wag not eiiiitlij to noiic.' to i|u|t. — Uoe Samson r.v. Tarker. Mil. .'. Will. IV. Vemnndnf Pimnrfiiiiin. — Wliirc the de- fendant, who went into por, fl Will. IV. Scrvirr „f Drrhinit.nn.—tirrMcp of n dcfluruti,,,, i„ rjccliiicm is not «i,m.-i,nt, on a prrson living in ,|,o tonanfa houRo' without .hewing that it rnme to th, fonfittftu I... 1 1 .... C„»„al Ejerlnr. _ Wh, ro ihr rulo for ju\v „,,,, r<-,urnnl,lo .•>i.'l,t ,l,.,yH nft.r „.rvi,.p of the rule on Ihe 'rnnnt, wnngrnntod (or the t.-nanttoap. P-ar, or oihmv,8ejudgmrn,. _ (Joodti.le 'Icrn. (iartcn r». I{oo. MirhB. 1 V,c._ Ooe Hond vi. Roc. Hil. 1 Vic. Serricf of Drrhirntion. — Whrrr the nffidnvit of service ol the declaration, stated a service on the tenant in pog.es. Hon .d part of the premises, a rule for judgment against the casual ejector, whs ffrant,,,! as to such part. - Doc Davidson Trinity, C & 7 Will. IV. "■ TenanUi,, Common ~A , ..in, > ■ •"^'"/'"'^ ^'''"■"■'''"ff<'—\Vhcre fhs les. by tenants m comn ii '.n a d a,::: 7 °' '": "!'""""'"»'^ "-" "-'-<'.-'' ejectment cannot he suppler- D,,: ^ ":/'''''''''^ ^"^. "-•'"'>—' "^ ">e ejectment cannot he supported. — Doe McNab et ,il. vs. Sciker. Michs. 7 Wi Demand „f Possession. ~^o demand of possession is necessary hoforo an eject inent hrourjht hy an heir, whore a party having n bond for a deed from Ihe ances- tor, enters into possession, and afterwards assigns his interest and possession to the H{'"f,v;7""" ^'■'""'"° "*• Vancott. Hil. 7 Wi!!. IV. *"">'• »//).r/«r«^<,„._SerTicc of a declaration in e,ec,mcnt on nnv person' but the tenant or his wife is inEufricienl unless It can he shewn that the declara' tion came to the tenant's knowledge be- fore the first day of tern,.— Doe Gray vs Roe. Hil. 7 Will. IV. ' Service of Decimation. — The usual rule forjudgment against Ihe casual ejector was granted on an affidavit stating that the deponent, who served the declaration, read part of the notice to the tenant, and explained the meaning of it, and that the tenant seemed to understand it. -Doe Mcf'urlane iia. Roe. Hd. 7 Will. IV. Demand of Possession. - A person holding land under a licence of oceupa- t.on from the Crown, is entitled to a de- mand of possession before ejectment brought by a grantee of the Crown in fee. costs of a fo.mer ejectment brought by him for the same premises, a rule to stay proceedings in the second action, until the costs of the former one were paid, was refused. — Doe Stewart vs. Roe Michs. 1 Vic. Mortgage.— A mortgagee will not bo admitted to defend as landlord, unless ho can shew that the tenant is his mortgagor, or holds -inder his mortgagor.-Doe Mai. loch rs. Roe. .Michs. 1 Vic. Consent Sule.— Where the lessor of the plaintifT and the tenant, each claimed the land in dispute as part of a diflerent lot the Court refused to allow the tenant to enter into the consent rule without con. fessing possession, but directed him to de. fend, setting out the premises in the con- sent rule according to his description, and «tatmg them to be the same premises which were claimed by the plaintiff in hit declaration.-Doe Ross vs. Roe. Michs. I Vic. Estoppel.-A defendant in ejectment cannot set up a title by estoppel in a stranger, unless he claims under him -- Doe Connor vs. CoUyer. Michs. 2 Vic. Several Demises.-Vfhere there are se. veral demises laid in the declaration, the rule forjudgment against the casual ejec. tor should be entitled. "Uoo on the sere- !r.ninrj. Triiiiiy, 1 4, 3 ■ WIk ro ihr nilr for I cnnual rjerliir, wn« ''•rrii nfirr mnn-c of "If iM-i, rniirniiblo •f of (lie ruleonlbe lor flic tenant to Bp. Iijnirnl (Joodiitle >(-: Mirhs. 1 Vic III. 1 V,c. lion. — Whrrr the )1 the drclaration, B tenant in possps. remises, a rule for ■usual ejector, was ■t. — Doe Davidson ■*• — Where the Ics. been Bttarlird, and lon.pnymcnt of the cinient brought by ses, a rule to stay :ond action, until r one were paid, Jtewart vs. Roe. gagen will not bo uidlord, unless he it is his mortgagor, gagor — Doe Mai. Vic. re ilie lessor of the each claimed the of a di/Terent lot, low the tenant to rule without con. ircclcd ))lni to de. niisos in the con- i description, and same premises ho plaintiff in his »». Roe. Michs. nt in ejectment y estoppel in a as under him Michs. 2 Vic. ere there are ae. declaration, the the casual ejec. )oo on the seye. I.N Titr. rm-nr of qt-KK.N'.s bi;.\( it. 31 rnl demise, of, ic," and wn " IW on I rl.-.n. hrr.t-„larh- w,,,,.! i,, ,1,,,, rrovincrf -he drm,sr „f, A-,-." Bu. „ ,h „,„ „..c..s. I _|).,.. II,.„dM-.on r,. lin.w.d. K,,... r 3 nary to tiirnii.iii all till' d.-ni'<.s ; it is «uf. Will. IV. lii'ient to Slat.', "on ilie srvir.l diniises of A., H., and oih.ru."— Due .McDonald, etal. M. Roe. Hil. 3 Vic. Doc ."Street, et al. r», Roy. .Mich.i. S Vic. Trniintt in Commtn. — 'I'lier.' cannot lie a joint demise by t.Tianis in comninti in ejectment, and moriuaiics are not iruo KyriTY OF RKDKMJ'TION. An ci|iiiiy of n dciiiiiiMii in a iirin of year<, canii.it !).• sold on execution.— Doe Webster r». l-'iiz«.rald. Kustcr, 3 Vic. K.SCA1'E. See also SiifRirr. Where a sli.rilf rcfiiM s to prodiiro a tee. un.ler 4 Will. IV. ch. 1 sec \A ,0 as to ' ■ , "'""' ' '" '"'"''"''' " ..t«i ,1 '•"•"'•'.»<'<;. '"'■'""'■■"", prisoner in Ins cusi,.dv,i«,:ntv-|,,iirli...ir» take jointly, where the eed is sdent as to I „f,er notice, it ,s an escnp.-. And wo the tenancy created.— Doe Hhuter, it al ' ,„ ,1, 1,, . ,r „ «'icri, r.. Carter. Hil. 2 Vic ' "", "'"''"' "" '^ '"'"•'"' "'• «'>"»■ '''<■"■"<'"'". the eheritr picndrd, that ho Servicf nf Drrlardti'iii .'Service of the dpjilaraticm in ejccttn.iii on a person who is slated in the aHidavit to have admitted gave the prisoner the benefit of the limits, and that he never left them, Am-., and the plaintitr replied that he did leave lli.in ; ■ inself to be tenant in po..s,.s.sion, is not i |,,.M „,,, „,„ „.;,„,. , ' '" ' BufTtcient : he must be sw ' ' ' '' ''''""""^ ■^'"'"'•'J "" •^-•«I'« BufTicient : he must be sworn to he tenant in possession.— Doe Dunn n. Roe. Kas. ter, a Vic. Drmarid of rnsursninn.—X demand of possession made by a person, who after. iMi.l.r this issue, by provin;,' that after the prisoner was admitted to the limits, she was remanded back to custody, that the ord.'r remanding her was delivered to the sheriff, and that he received due notice to wards assigned his interest to the lessor of ne recc,v,.l due notice to the Plaintiff, cannot ..e „,„..„ „. .' M .. ' I"'""' ''" '"^''>-' '"" f"''-' '" <'"'"< --- the plaintiff, cannot be made available by the lessor, so as to make the tenant's hold. ing tortious as to him.— Doc Creen r». Friesman. Easter, 2 Vic. Wraggr,?. Jarvis, Mi.li. (! Will. IV, In a declaration for at, escape on a writ issued from a District Court, the niak. ing and filing of an affidavit of debt must r. • • , „ '" """ """« 111 an ninuavit o . f ht nmut Exp.ratwn of Title.-A lessor, who be allcL'ed -\Vrn,r„ . ,'."""'';"'""' had the title to Jie premises at the time of .I ilr!;" \ ^ .-^Jr';^ ^'""'°" action hrouiT It hilt nr,t n( . I,,. .: r.-:„i .... ' "'".i*. action brought, but not at the time of trial, is entitled to damag.-s, although he cannot recover his term.— Doe Meyers vs. DIakicr. Easter, 2 Vic. Service of Declaration. — An affidavit of the service of a declaration in eject. mcnt, on a person who represented her. self to be the wife of the tenant, is in-iuffi. cient, unless it states the deponent's belief that she is so.— Doe Sanderson vs. Roe Trinity, 2 & 3 Vic. Service of Declar'Uion.~Xn affidavit of the service of a declaration in eject, mcnt, cannot be sworn b.fore the Attor. ncy in the cause— Doe Walker vs. Roe Trinity, 2 & 3 Vic. ELEGIT. A judgment is not a lien upon lands for the purpose of an elegit, so as to avoid the effect of a writ officri facias against lands, issued on another judgment aubsequentlv entered, but placed in t!;. -herifPs hr,mh prior to the elegit ; am ,ua;rc can aj In debt for an escap.-, the .sheriffcannot plead sntisliiction previous to the issuing of the writ, from which the escape was made, in bar of the action.— Munson rs. Hauiil. ton. Easter, 6 Will. IV. On the death of a Sheriff, his deputy is charged with the execution of his office, until a now .Sheriff is appointed, and lij must assign over by indenture as well the debtors on the limit.s, as those in cus. tody, and the new .Sheriff is not liable for the escape of a debtor, on the limits at the time of his appointment, wiihout such a.ssignment.-Mcl'lierson et al. vs. Ham. ilton. Ea.ster, 7 Will. IV. An action for an escape on mesne pro. ce.ss will not lie, where a valid bail bond has been taken, and an action for an es. cape should be brought against the SherifT and not against the bailiff, who arrested, unless the bailiff has been guilty of r r-rcue.— Wilson vs. M'Cuilugh. Michs. 2 Vic. il 3'i A DIGEST Of (.ASES DETERMINED A Sficriir in n')t Ijahln for an ofcapr, when; hiH baiUlY arrvnlM n ilehtor wluni lin hw no warrant ugaiiisl him, altli.iu^'li In; hm 'III' writ in )\tn ponjienMitiii, wit ih the Slirriir lialili! Ill) II f.iiiiit for not nrrcsimi; under Hiii-h ciriiiiii-imiiL-cH, ninl wlurc ilu^ ShrhirhaH mice aitcniplcd to niaki; an ar. rent, and has Imk-d, lin is not bound to make anotlirr aliempi, uiiliws lie has r.x- preflu notice where the dehior is.— Ilif-iicy «>.». Kiiltiin. Hil. 2 Vie Falc(inri(l;,'e r». HaniiliDii. Iviflter, H Vic. A iSlii riir limy lirin;,' an action against bail to the liiiiiw, tor the escape of the debtor, before ho has been sued or paid th6 money, for wliich the debtor was in execution.— Rutlan vs. Wilson, et al. Mirhs. 3 Vic. Where a iShcrifl'Brrrstrd a debtor under mesne jiroccss, i-Huod from a District Court in trcepaas, and afterwards suffered him to cBcape. Held that he was not lia. blc therefor, the writ beinij void. — Smith v». Jarvis. llil. 3 Vio. In an action fir an escape on final pro. cosa.u ploa of the insufficiency of ihe gaol is bad — Rowan vh. McDonell. Ilil. 3 Vic. KSTOPl'F.L. Qua:ro whether the verdict of a Jury under the 50th Geo. 3 ch. 1 upon the same matter directly in question, operates ns an estoppel ogainst all future similar ap. phcation?.— Rcxi«..rustices of Home Dis. trict. Trinity 11 Geo. IV. Whore the nominee of the Crown, be- fore any grant was made to him, convey, ed in fee to A., covenanlinEr that he was seised in fee, and after the prant came out, conveyed in fee to B. Held that the first conveyance operated by estoppel again.st the Grantee of the Crown, and R. his privy in estate, and that A. was enlillcd to recover in ejectment.— Doe Henessy vs. Myers. Easter, 2 Will. IV. Where A. and his wife, havin? no Icijal interest in the lands in question, conveyed to B. in fee, covenantintj that they were .seised in fee, and had good title &.C., but the wife did not execute the deed, and af. terwards a grant from the Crown issued to A. of the same laud, and he then convey, ed to C. in fee. Held that C. was not e.«iopp»>d BM a privy in estate, by Iho prior conveyance to B., the covenantM executed by A. alone not beint' finiricient Do* 'IMIiiny m. .McKwen. .Micjy.. 1 Vtc A deed convryniK all tlie ifrantor's in. tereit in land, in which he had no interest at the lime, but in which he rtubnequcntly tobtaincdan inlrrcsi, will not operate by estoppel — Uoel'cteniMOutwater. Mich*. •-> Vic, .■\ dilcndant in ejectment cannot set up a title by estoppel in a glraniier, unless ho claims under him — Doe Connor v. Col. Iyer. .Mich.s. 2 Vic. A deid of bargain and sale, with co. veniinis for title and quiet enjoymcnt.ic., and executed by the bargainor only at i. time, when ho had no interest in the pre. inises, does not estop a third party, to whom he has conveyed, after obtaining such estate.— Doe Dell vs. Vroman. Eaater. 2 Vic. FA'IDR.VCR. See also WixNtss. Miliffation of Danv.nfn—Mcsnf Pro. \fits.—\\\ trespass fornii.5,.< profits, Ihede. (endaiit may give in evidence in niiliga. tion of damages, the value of buildings erected on the promises by him Lindsay vs. .Macfarlane. Michs. 10 Geo. IV. Parliritlars — Under a bill of particu. larsof work and labor, the plaintiff may give in evidence the acknowledgment of a specific balance.— Drummond vs. Brad. ley. .Michs. 1 Will. IV. 3I(mey had and KTcirpd—S/ieriff.—ln an action against a .Sheriff, for the over- plus of money levied against the plaintiff, under an execution, a demand of the mo. ney before action brought, must be proved. Rugglcs vs. Beikic. Michs. 1 Will. IV. Executor and Administrator Where the plaintiffs declared as executors, laying promises to the testator in his life time, promises to the plaintiffs as Executors after his death, and an account stated with the plaintiffs as Executors, and proved an acknowledgment to the plaintiffs of the debt, the Court held, that it was not ne. cessary to produce the probate of the will, to prove their representative character Dickson et al. as. MarklcHij. J Will. IV. I VI!: n e»lato, by iho prior ^ covoniiiitmiju'cutcd cnj; (iiitJu-KMit. — Do* . Miclui. 1 Vip. nil lliu iirrantor'a in. ;h lie iind no intrrest licli liu rtiihRequcntly will not iiporato by p< (Jul water. Michi. lincnt cannot aet up 8iriiii(,'(>r, iinleaa ho 'ii« Coiuiur v». Col. nnil anic, witli co. lict rnjoyincnt.&c, Iwirsainor only nt i. I iiilcri'st in the pre. 1 li third pi\rl>, to I'll, after obtaining vs. V'ruman. Eaater, VCR. VlTNESS. I'.rrfii — Mane Pro. im.,- profits, lliodo- irridcncp in niitijja. value of buildings by him. — Lindsay KXioo. IV. ft bill of particu. the plaintifT may cnowlcdgment of a nimond \is. Brad- ired— Sheriff.— In riff, for the over- ;ainst the plaintiff, Jeninndof Ihomo. It, must be proved. :hs. 1 Will. IV. istrntor Whore executors, laying in his life time, ifls as Executors ccountsta'cd with "s, and proved an plaintiffs of tho at it was not ne. •obate of the will, tivp character ■.lli!.l Will. IV. !."« TICS COUKT i)F hUEEN's BKNiK. X\ AUtn.—Oi\ a travirxi! of offi.r, the la. ' in a public office to the head of the deprrt. •ue wu whether Lane, an alien, wa» ! ment, b«iiiii.«i nnolh.r Clerk, was luld ■eiied ID fen on the Isl July, lelH, of tho not to bo a prinl. i,'. d nunini.niculion, in lands in iiueBlion. Tho Imvirwr provid the nlwci.cc of any proufnt the |.m» of a prima (ncif tide, ami a poN»em,'e J ,,i„„, ,,, ,„„„„, ^,„ ;„,„ ^^-^^^^ ,_ „, ^,^^,^ at Nisi I'rius, haviiiL' h ft it to the jiirv ' ,u„, ,i,„ ... i . . i i i , ' '' '^ J "•' I that the jiid>,'meiil, i/n which h. received ; the nioiiev, was obtained by his client by under the evidence, to Iind whether the original grantee had convi yed to the alien in fee, winch they nej.Mtived. 'I'lie Court refused a new trial.— lUx r». Theale. Ilil. 1 Will. IV, Caitumt — fnformalion. — Where to an information for the conduinnation of goods as illegally imported, the defendant plead, ed, that they were not inipjrted nudn et forma, and at the trial offered to prove, under this plea, that tho goods had been landed through stress of weather, which ho waa not allowed to do, and the Jut ,' found a verdict against him, the Court, considering .hat the evidence was adinis. Bible, granted a new trial. — The Attorney General r». Spatford. Ilil. 1 Will. IV. Secondnry Evidence — The recognition of the existence ol a bond, in a letter from the defendant to the plaintiff, with proof, that a document, piirjiorting to be a copy or draft of such an instrument, was shewn by tho defendant with the title deeds ofan estate, to which it related, affords suffici- ent evidence to go to a Jury in proof ol iuch bond, after notice to produce, and a failure by the defendant to produce any bond, copy or draft.— Rochleau ij. Bid. well. Easter, 1 Will. IV. i?eeon/.— Every roll and record filed and dockettcd in the proper oifice, will be presumed correct, until the contrary be shewn, altiiough it may appear that the entries were not examined with the ori. ginal papers, by tho officer, at the time of filing and dockctting — Prentice vs. Ham. ilton. Eaater, 1 Will. IV. Privileged Communicatinn A charge of stealing office monies, made by a clerk fraud.— \Villiams ri. King. Easier, I Will. IV. Cmennnt fur Title. — In covenant for title, till' breaches assigned were, want of seisin in fie, and nn eviction by a stranger, stated in the ibclaration to be enlilird, to which the di lendant pleaded a .seisin in fee in himself. Held that on the plaintilf proving an CNiclion by the stranger, with, out shewing his title, it was incumbent on the defendant to give evidence of a seisin in himself, — Vary vs. Muirheud. Ecster, 1 Will. IV. Malicious J'rosrcution. — In case for a malicious prosecution, the declaration stated the trial before the Hon. Levius P. Sherwood and A. McDunell, assigned by his Alajesty's letters imteni, to them and others named therein directed, and the re. cord in evidence, was of a trial before the Hon. Levins P. .Sherwood ami others, his fellow Justices, assigned by letters patent directed to him and others, or any two of them, of whom he was to be one. Held no variance. — Prentice vs. Hamilton. Tri. nity, I ar.d2 Will. IV^ Trespass — General Issue. — In trespass for driving against and killing the plain, tiff's horse, the defendant cannot give in evidence under the general issue, that it was an accident, and arose from the plaintiff's own negligence. The defence should be specially pleaded McDonald PS. Monk. Hil.3 Will IV. Secondary Evidence In as.sumpsit for n.^t drlivrring g•^•-.d?, ftfit-f the plaintiffs had proved a verbal agreement, the deliv. cry of part of the goods, and also an un. I 84 A DIUKST OF tAKES OETERMINID d.,..k.ng by .h. d.f.,„d„n.. .1... |.„ would | d.v.„ „,.d.. I.y „,h„ p,„.„, ;„,,«,.. no, e,erc,.«. certain ,r„|,. w.,l.„. alued ' -Al,l.,„.a.. „. W.,i ,.^.1. I , Jfiv.. Ill |.vid.iir.Mi cupy ul 111,. nHid»*il of It',. / '"•""""•"'• •'" •"" .".,... o«ui:. .nd.; I j^":':,: '^^— '- w..... .h„. •" '■' - « .-r,.„r« J :;::,::::;r7;"'/'''''''''''^''-« HW..r,> ,o l,y „„„ of .ho pl,u,„i(r, ,„.| ,he. i . '"" '" '"""" '''" c"ii..d..po„ ,h„ ..i«.J...:Jt. ':!':;::':'; 7''7''^;^^ •«- oriKiniil ntTPciicril, iiu. |,„v,i,^ served iiny ni'lico (o pr„dur,.. nii.l ||,„ ropy o/ .he »irro...n,.n.in.hru,(Ii,lnvi.ofd.h.,noti.tal Mamioii. KiiBUr, fi Will, IV. Trf,p„„^Shrr,ff.-hx .ricpaiM affajnil ft Sli.riM' Ini- srui,,,, properly ,„ p,ppy_ ">»r liny !|,i,iK,|,o,„,h,„p„l.,i .he under T '""" '"'" "'i^i-'if properly m cieru. tuk.„« proved l.y ihe plain.ili; co.ir.rni.ijr i ,'' '' """" """■"•""'"":"""'«' bailiff, the ..xurci,o of .he •'"■ poi^i'SMion ol ih,. n.-r, ,.„„ ,1. I,u ,i m " " '"' '* ■ po.'....SMion olili,. ,wrrr..,ii, ,„, l.vtli.irafli. dnv.i o( dfl.r, a„,| ,h„t „» ,|„, wri.inK waa iho l'.'8l«vid,-nc.M.«lioi,M |,„v(. hfon pro. duci'd. nnd.liHllhr.tp„rtofil,„ ,.vi,l,,„cp coiu-wiinff iheexoroisoul ll.c ,i..(,.,ulum'H iriul.-, no. hfiiiK conluiiird in n, slumld Inivo |„.,.n r.j.ii.Ml.— (;i|lH.rt el ul. t*. SIccptT. Kusicr, 3 Will. IV A/rifknt.— To provi- iliat a party made an atridavit, whirl, Imn l„ on tilnl, „ Hworn copy „ttli,. nllidavit coniiii^r />„,„ ,|„, |,„,„,g of ilw iiropor olilcT, and hIiowi, to havo been used in .hp cniiso i.s mimcicnf Hpafford vs. Duclinnan. flil. IV \Vi||, IV FilzC;..rald vi. Webster. Midis. 3 Vic. Secondary fvidcnee.—Whcro in cjeC. mm., notice to produce a Crown lenne undor wliich Uie lessor of the plaintill filaimcd.hud l,,.,.n «iven, and the letise was not produced, but an exenipliHciition of it v.as put in, and the def.'ndunt gave parol tesUinony .hat the leaHc had h .en assigned to n third party, who had ^riv,..) a niort. e^SC on it to the lessor, which had b.'cn paid at the day, and the jury found for the defendant. Hel.l that the evidence that the lessor had jiarted with hi, interest, wai sufficient to support the verdict.—Doo Crawford vs. Cobbledikc. .Tlichs. 6 Will. ^ '■'■'■""•'"— Where in a declaration in an action ngainst an Insurance Company, it was averred thateertain nfTidavils neces- sary accoidint; to the terms of the policy, were made by A. and ]i. Held that such averment was materia), and proof of affi- AjlUI'mts umirr .", Hen. Il.—Thc ita. ';""■•'■"' "•'^h- 7 «ee. I, respecting affi. •InvitH made in f;n«|nnd to prove dcbto H"<'d for here, is still i„ f„rce. and .,u*ro I whetlKr Hueh an adidavit, made before I a suit was commenee.i here, should be entitl.d, or whether it can be used a. the trial, ami where one par.y .„ a suit iaauca n .•ommission to examine witnesses, the oilier party has a ri^d.t to call for and '""ke use of it at the .rial, and semble tl".t an order for its publication may bo' "'"""I'd before irial.-Gordont,.. Fuller Trinity, (i &. 7 yVdl. IV. /'""""'^'"■""' - T''« signature and seal of the thief .Magistrate of a town in a f'lr.Mgn country, to an affidavit proving 'lin due execution of a commission to examine witnesses, issued from this Court, are to be considered genuine without further proof.~Doe Lemoine vs. Ray. mond. IWichs. 7 Will. IV. /Cj:lul,its. — Hworn copies of exhibits hied in the Crown Office, cannot be re. ceived in evidence; the originals should be produced. — Nelson et al. vs. Mc. Donell, Hit. 7 Will. IV. Wn«,/fr.— In case for slander, worda stated in the declaration, as if narrated by ilie delendant in the third person, are not supported by proof ol' words spoken by liim, in die first person.— Phillips e». Odell Hil. 7 Will, IV. Cirdits.—A plaintiff is not bound by crrdits, givet: by him in accouni, on the mere statement of the defendant, but may '^ m to ft person*, inaufficiant. ♦•Ill i>l HtoUand Li«ur. I. 6 Will. IV. ""'• — WlnTP th«r« •nirnl, fnutK tli«« pric* llilil 'hni in Bciiiin for iih Work, ihp »gtv». urnl. — Wollace »#. Will. IV. r.— In irefipamigiijntt properly in eieru. inl to call the bailifT, tc i Ilia warrant rnuat I nnn.prniliirtjon ac. r#. Jarvis. Kaaler, ) fJen. If.— The ata. re. 1, ridpeclinK affi. [land tit prove do bt« in force, and i|iia!ro iilnvit, nmde htforo ed liero, Blioiild be t ran hv used at th« party to a suit iaaucH line wiincsRe.'), iha •III to call for and iriiil, and acmblp, iiblication may bo -Gordon vi. Fuller. V. signature and seal (1 of a town in a 1 nffidavit proving a commission to ed from this Court, genuine without jemoine vi. Kay. V. copies of exhibits ice, cannot be re. e originals should 1 et al. i)». Mc r slander, word* , as if narrated by d person, are not words spoken by Phiilipacj.Odell. is not bound by accouiil, on the fendaut, but may l."< TICK com UK (4lT.EM'.S an.Ni.ii. 35 rajeclaiirh credit, mil. « thrdiLn. ^ can nhi-w tiiBl iht'y on;;!.! to he iillow.J. —Gordon r*. Fuller, 'rniiiiy, | &, U Vic. I'nrilrgnl liimmaniriilmn.—.\ com. tniiiiieaiiun, ninde lo an Ailorney in ||,s proliMiun.il .hariiei. r, ii prinle;;ed, al- though no milt eoiieeriiin,' lliu huI.j. ei maiter, n peadiiiB al the lime, ii,ir un) ci)nieiiipliii.d.--llalttr«by rt. lliiycutk. KiMlcr, -i Vic. Admi$>wn.—,\n pilmisNi„n by adtbtor on the hniiui, ihal he haa lefc die limii... ih not adniliuiiblv to char«e hw mireilts,— Frci'land tt. June s, .Mich-. .1 \u:. FXKCUTloN. See aUo — Caiu<( ad .Satis»ai ieni.i.m— ' Fimi Fac IAS. ! An execution ai;aiiiNi ih(> go(jiN or i lands of thn defenilatit, le(,ted alter hi.ri ' death, is void.— .McCarihy r». Low. Hd 2 Will. IV. It is irregular to is,icli,'ivr liis fiiin n hiiiidrrd ncrrs nf land, was in. duci (1 by ill" Pon to f .\rliangr llint land for the priipiTty of n stronffor, the father pnyiiur xiajfufDiich exolmiiiip, mid the sun pruinifiin; to repay it, .so that it inialit Ro in the dmtrilmii.in tn the rest .if the I family, and the father, then, for u luuninal eonsideraiiun, cmivejed lo ihc Hon the land received in ex(diango. Held, that tho cxecntors of iho father Mii(,dit maintain nn action atrainsi the son for the X'liJ."), a.s money paid lo his use, that lliey were not ePIopped \,y ihe cuiiMderatioii .staled in the Di ed, and that it was not for an interest ill lands within the stalnle of frauds.— Mclihde et al. t». runiull. Easter, 5 Will IV. Drclnralinn —Where a plainlitf, in )iis declaration, styled hini.-'elf administrator of A. IJ., and laid promises to himself ad. ministralor as aforesaid, but did not over ony debt or promise to hini.self a« adinin. islrator, nor make any profert of letters of administration, a plea y a ic.wiator on nn imrclnsr of Innds, s failed to complclc, nek l)_v the pxpculorB, II, Kastrr, 2 Vir. '. — A listntiir, who li fcndant, appointed he, bciiifr dpsiroui! of I, inadr an arrange. r, to whom the ten. g, to confess a judg. ".xf'ciition mii,'ht is. if the tosiator in the oxeciilor, and that y ihn proceeds nris. le drfendant for hi* havinij been given ri piirsiiancp of this r(, on the appiica. lie land, set aside iili costs. — Bonnis- ichs. 3 Vic. ITS. \luhits, filed in the le received in pvi. lonid be produced, inell. Hil. 7 IV. SONMENT. le limits, on a writ iliitn, issued out of roufrht by his bail riff, who refused to be gaol, but gave 19 taken away by Icr might receive )t then surrender :T, (the debtor, in one off the limits,) riff, wlio kept him le was discharged go of the district ction for false im. ^ against the slier, r on the second g been condition, t complied with, en negligent, and on V9: XiSonard. In trespass forfal-c miprisoiuiieiit.a pita juslilying iiiultr process ol a district court, wliH-li had betn set asiJo for irregularity ou the lernia ol no uciion being brought, cannot bo sustained. The defeiidani should have applied to h;ivo stayed the proceedings.— f'rrns ts. Dyer et al. Eust. er, .-. Will. IV. In tre< Will. IV. i\ husband, having given notice to tha plaintilf, that he would not be responnbl lor goods furni.-hej to his wile, wlio had wiiliilrawn liersell Iruinhisproleclion, was held ii.it to be li.ible lor goods furiiislied t > her by the pluinliir, without his know. Ii dge, after she had returned to him again. — Weaver r». Lawrence. Easter, 2 Vic. that he signs and seals the deed, unless ho FENCES. The statute 4 Will. IV. eh. 12, for rrgu. I.'ttiiig line fences, does not apply to cases where tiiore is an express agreement e.x- isling between the panics. — Lane vs. .Mul. holland et al. Easter, 6 Will. IV. A land owner in this country must fence airainst c!r.ile — bpalFord vs. Hubble. Miehs. 'i Vic. FERRY. In case for disturbing the plaintiff's fer. ry, it is not necessary to prove, that the dilendant either received or claimed any hire or payment. — Burford vs. Oliver. Alichs 10 Geo. IV. FIERI FACIAS. Sec al.io ExF.erTioN — Lands. A writ of Fieri Facias, against the goods or lands of a defendant, tested after his death, is void. — .M'Carthy uj. Low. Hil. a Will. IV. It is not improper for a Sheriff to return to a writ of fieri facias, that ho has mado the money, and paid it over tn the Plain, tiff's Attorneij, the words in italics being mere surplusage — Doyle vs. Bergin. Tri. nity 1 and 2 Vic. An original writ of fieri facias with the Sheriff's return thereon, having been lost, the plaintiff was allowed to issue a dupli- cate to obtain a return, to warrant an alias. — McEwen vs. Stoneburnc. Trinity, 7 Will. IV. A term of years cannot be sold under a writ of fieri facias against lands and lene. meiiis. — Doe Court vs. Tupper et al. Trin. ity, 1 and 2 Vic. An equity of redemption in a term of years cannot be sold under a lien facias.^ Doe Websterr*. FitzGcrald. Easter.S Vic. 38 A DIGEST OF CASES KETEIIMINKI) The Crown cannot grnnt nn Pxolusivo n/,'lit ol fi.shi.ry, in naviff.il.I,. untcrs in lliin rrcvincc— M.jfrutt al. r«. ItoJdv. Michs. 2 Vic. FORcrriLf: entry. An inquisition (■,„• a f.rciblf .niry, taken before Mia;-isir;iic/», under VIH. Jlcnry, « ch. a, must sliMW wh.-.t eslale the imrly expcllrd had m the promises, and if it do not, the i.nqiii.sition will he fjuashod, and the Court will award restitution. The inquisition will also he had, ifit appear to the Court, that the defendant had no no. tice, or that any of ih.. Jury had not lands or tenements of 'hr value offorlyshillin;,'.*, or that the pariv r.jmplainiri!,' was sworn OS a witness.— licx is. Moir.Mvrey pt al. and Mitchell vs. Thompson. .Michs. 1 Vic. FOREIGN .lUDOMENT. A plea oi a foreign jud^'menl, pleaded puis darrein continuance, initsi .«how that I the cause arose since the last conijnuaiice, i and that the judjrmc-nt was on the merits I and conclusive heiwern the parties in the court or country, where it was given, or the pica will b? bad, and semblc, such a judgment properly pleaded w mid bo a bar.— .McPhedraa vs. Lusher. Trinity, 4 and 5 Will. IV. In an action upon a foreiirn judijmenf, the seal of the Fonlgn Court is sulTiiiently proved, by a person, who examined the •eal'on the judgment, with the orifjinal seal in the proper office of the foreign Court, and _costs arc recoverable on a f.j. reign judgment, which awards costs, al- though not actually laved, until long after the time when the judgment was entered. — Hall vs. Armour. Hil. 6 Will. IV. A foreign judgment cannot be proved, by a certificate iiom the Clerk of the foreign court, that judgment has been en. tored for a certain sum in fa-or of the plaintiff. — Norton vs. Post. Easter, 6 Will. IV. FOREIGN LAW. Where the law of a foreign country, as to the presentment for payment of a bill of exchange, payable at a particular plnee there, is not shewn, the necessity for such presentment, must be determined by ths law as it exists here.— IJuffalo Bank v». Truscott et al. .Michs. 2 Vic. FRAUDS, Statlteof. ' A. agreed to pay B. f„r a lot of land upon receiving a deed, R. offered the deed, when A. declare.! his iiiahihiy to pay, and proposed new terms, which were accept, ed. Hrld I'lal R. was thereby relieved from the necessity of tendering a deed to entitle him to sue ,\. ur to rescind the con. tract, and that an agreement in writing within the .'Statute of Frauds, might bo waived, discharged and determined by a I snhsequrnt verbal agreement. Quiere, wheilier before or after br.^ach ?— Mul. grav.; rs. rringle. lid. 1 Will. IV. Several documents may be construed togeiher, as evidence of an agreement or note in writing under the Statute of Frauds, and a conveyance in fee from the plaintiff to the defendant, with covenants for title, but not lor (urther assurance, a bond to the defendant for further assur. ance at a fixed period, on receiving an additional sum of money with interest, to. gether with a subsequent written offer from the defendant to the plaintiff, to purchase another property, by paying part of the purchase money at once, and the residue at a future day, on receiving a bond from the plaintiff like the former bond.for a deed of confirmation in the same manner as in that bond. Held sufficient to constitute an agreement, or note or memorandum thereof, of the second pur. chase, within the Statute, and to enable the plaintiff to recover from the defendant, the sum specified in the bond and interest thereon, on his tendering a confirmation, and making a demand of the money Rochlcau vs. Bidwell. Easter, 1 Will. IV. Where A. purchased plate of B. of the value of £70, and directed him to have his ciest engraved on it, and afterwards to forward it to his place ofresidmce, but paid no part of the purchase rioney, nor any earnest, and B. having obeyed his orders, brought an action against him for the price, A. having refused to receive the plnie, snyinc that it was not the ssme as he had purchased. Held that A.'s direc. ' ' ■ -t»w*^.-ftiWivw.ia>j ! determined by tlia — Hiiffalu Bank r». «. 2 Vic. 3TATLTE OF. ': f'lr n lot of land , It. iifTcrod ihc deed, iiiahiliiy topny, and wliicli were accept. ■13 thereby relieved tendering a deed to r to rescind the con. rem em in writing f Fraud.a, might bo id determined by a jrccnient. Quaere, iir breach 7— Mul. 1 Will. IV. nay be construed '{ an agreement or T the Statute of ice in fee from the nt, with covenania uriher assurance, a for further assur. on receiving an y with interest, to. lent written ofTcr the plaintiff, to riy, by paying part at once, and the ■', on receiving a r like the former nmtioninthesame . Held sufficient ment, or note or >f the second pur. itc, and to enable om the defendant, bond and interest ig a confirmation, of the money.— laster, 1 Will. IV. plate of B. of the cd him to have , and afterwards of resid-nce, but base rioney, nor ving obeyed his 1 against him for sed to receive the not th.-; ssm? as that A.'s direc. IS TItE COURT OF qveen's ni-.\cir. 30 tions for the onirraviiig of the crest, and the forwarding to lii» place <■( residence, conclilutcd a sudiciect ucr(|)iance and delivery, to take ihc ease outdl ijie seven- teenlh section of the Slaiuie of ('rands. Walker r». BoulDn. Triiinv, 3 & 1 Will. iV. Where a lather, intending in the diairi- bulion of his property, to give a son a hiiii. drcd acres of land, was induced by the son, to exriiange that land for the proper, ty of a slroii,'- r, the father payiiii; Xlvij for such exchange, and ilip son proinisiiii; to re.pay ii, so lh;it it niinlitgo in llie di5. : tribution to the rest of the family, and the | father then for a nominal consideration, conveyed to the son, tho land received in : exchange. Held on an action beinn brought, by the Executors of the father against the son, for ilie money, that it was not a contract for on interest in lands with iho Statute of FraiiiN.— McBride et al. ts. Parnell. Easter, 5 Will. IV. An agreement to enter upon and clear land, and take the wood alter it is cut down in payment of the labor, is not for an interest in lands within the Statute of Frauds, and the person clearing the land, ,jiay maintain trespass against the owner of the land, for "taking away the wood after it is cut down, nllhougli he has no possession in the land, to enable him to maintain trespass qiiare clausuni freuit. Hamilton i'». McDonell. Easter, 2 Vic. FRAUDULENT AS.SIGNMENT. A deed fradiilcnt as to creditors, cannot be impeached by the heir of the parly who committed the fraud, nor by a stranger acting nominally for hiinself, but really for the heir.— Doe Danby r«. VanKough. net. Trinity, 6 and 7 Will.IV. ^. GAOL. A plea of the insufTiciency of his gaol, is no answer to an action against a sherifl' for an escape in execution Rowan r*. McDonell. Hil. 3 Vic. Gaol Limits— See L(§h-s. GOODS SOLD. Where the defendant in this country, ordered certain articles of clothing to be tijad.-snd s.-nt tr, him by iht-pbinliff iroin England, and on their arrival here, ihey were received by ihe plaintitT's agent, who did not teiul.r them to, nor leave them with the deleiulant, although he de- maiided payment lor iIkim, which wot. re. fused. Held that an action lor g.iods sold and deliver, d would not lie, but that the plainiitr should have declared specially for the non.acceptanro.— Lane ti. Melville. Easter, 3 Will, IV. Uhere a Hieaniboat was mortgaged, and ill the p„,ssessi,)n of the niorigagcee, who navigated her for their own benefit to ^ecurc their advances, and she was torti. I ously taken possession of by the captain, I who received the profits arising from her, for bis own use. II. Id that the moriga. gor was not liable for goods furnished for the vessel, while she was in the tortious possession of the captain Frascr ct. Flint. Michs. 5 AVill. IV. An action for goods bargained and sold, cannot be mninlained against a person, wh.) has become responsible for the pay. ment of goods delivered lo a third parly. — .'\Ic K.iizic etal. rs. McBcan. Eaater, 5 ^V•lll. iV. GRANT. See also Crown Grant. The descripiion in a grant will be taken I as correct, unless the contrary be clearly shewn.— Doe Smith ti. .Myers. Hil. 3 Will. IV. In actions in which the King is a parly, in the construction of grants from the Crown, where there is an ambiguity in respect of the premises, as .""or instance, what is to be considered the bank of a river, otiier grants from the Crown are admissible in evidence to assist the Con. struciion,and grants from the Crown cither tor a valuable consideration, or of especial f:ivor, are to be construed in the same .•iianner, us deeds from subject to subject. — Clarke et ni. vs. Bonnycastle. Easter, 4 Will. IV. GUARANTEE. Declaration in assumpsit on a guarantee to the folio wing efrrct, " Please credit A. one hundred pounds, and I agree to hold myself responsible for the payment of the same," and an avcrrnent llint lliu plaintiff did credit A. Held that the plaintiffmuat 40 A /IIOF.ST OF CASES DETERMINED pmve H„ch Bvormrnt, nnl tim, rallin? a | lo P.mblo hu. vendee to recover in eject- Clork, wlioHlar.-d .liutRi.chcre.lif had l.cm mrnl-Uue D.xon ,-,. Giant tt al. taster ^ivrn, b.cniDio lie saw it soenlrred in ilie j 4 Will. IV. ' plaintitr-s I. M.k-, ul.iol, wrn. not pni.liu-. j No.lon.und of powes.ion is r*f|uired he. cd. HMd wliHluMiiy li,„l ,„„ I,,.,,, „,;i,l.l,v lore. On «,;m,n „1 ..j.-ciinent bruusjlil l,y un h.m.wnsnotsiiflicMttoprov,.,,. g.i.T.n-, l.eir, wlierc a pariy l,„v,„g a bund W a .« *.n,l, an nridrrMki,,. u iOiin ,l,e Hia.uto I .l.( .1 Iron, llie ancestor, cul.red intu po«. "'" ~ I'l-'V. I 't'f'l "lid ponstpsi,.!! lo the dclendant.— An ac.iun lor fiood« bargained and sol.I, I Do. L.inoine v.. Vuncott. ]1,|. 7 Wili cannot bo niainl,",iiied nirninHt a prrson, i IV. w:.o has beconit r. -pniiM,!,!,. tor the price | liKUIVVW of troodH fi.rni.bod ,„ a .Inrd p.r,y. Tliere Where in ,|,. „n,Mn,i"l plan of a Town. must be a special aciioii on the (»iinranlef. — Mek'enzie ^t al. i». Aldlean. Kaslrr. 5 Will. IV. A past oonKiileralMin, siateil in a writ •hip, a piece of ijround was laid out aa a highway, winch wassubseipiently granted by the Crown in Ice lo several individuals, and was occupied by ihcni, and others ten undortakm-r ,o be responsible fur .he , clainii,,,- Iron, tlicn. f„r upwards of thirty tiebt of another, is not siilTicient within years. Jfejd that nn indictment for a nni. ,, ^ ^, ..;.— •• ■ '" "i<>> oil inuiciineniior a nm. tlie ^taluie of f rauds.-Wilson r,,. II,i|. sance, for stopping up that piece of ground. Easter, 2 Vie fii'Annr.w. The possession o( a niollur will not be considered tortious, as against the heir, h<'\n^ her own child, but will radier be treated as the possession of a guardian.— Doe .Moak r». Enipcy. Easier, I \Vill. IV. IIEIU. No action lies in this Province against an heir, on the simple contract debt of his ancestor — Forsyih is. Hall, Hil. 1 Will IV. c-laiming it as u highway, could not bo siislaiiicd.— Hex ,■». Allan et al. Trinity, I iiud 2 Will. IV. •Iiisiices in Quarter .Sessions cannot re, fuse r., confirm the unopposed report of a surveyor of highways, rccomincndiiig the alteration or opening of a new road, on the ground that the proposed road has been finally r.jecied by the verdict of a jury on a former occasion, if, upon in. speclioM, the alteration and line of road rejected by the jury, and the object of the pending proceeding, do not seem identical. ■ V 1 •■-->".. ■^,>.u iiuioieiii lucniicai. in ejectment by a son and heir, evidence —Rex i-j. Justices of Home District. Tri. of the marriage of his parent.s, and of his | niiy, 11 {!eo. IV. identity, must be given to prove pedigree. | An indictment for obstructing a high —Doe Huinbcrstone vs. Tlionins. 11,1. 3 way, laid out under 50 Geo. Ill ch 1 Will. IV The heir at law is entitled to recover from a ShcilT, ih surplus of monies aris. ing from a sale ol his ancestor's lands, on a Fieri Facias against those lands, in the hands of his Executor.— Ruggles vs. Bei. kic. Hil. 4 Will. IV. If on the death of a tenant at will his heir enter, such entry is tortious, and if the heir die, and his heir enter, the origi. nal owner or his heir will be put i.i a ri^rl,t, —Doe .Moak ts. Empcy. Easter 4 Will IV. cannot be supjiortcd, when the highway has not been established, in the manner marked out by that statute, as when the report to the magistrates in Quarter Scs. sions by the surveyor of roads, does not exiiress the exact width of *« road, nor the precise line in which it is to run ; and semblc, in such a case, all the steps neces. sary to be taken, before a highway can be legally est^lished under that Act, should be proved" the prosecutor to have been taken, brfoie the defendant can be found guilty — Rex vs. Sanderson. Easter, 3 Where there is an adverse possession of! Will. IV. land an heir at law, who has never en. | A piece nf knd. marked ont in the ori tored, cannot make a conveyance, so as j ginal plan of a township, as an allowance" (ED dco to recover in eject- n VI. Giant ct al. Easier, owesaiun is required, be. .icciiiiciit brouglil tiy uii ly liitving u bund (ur a t'slor, enlcrcti iiiui poe. wards) aRsi)Tiii d liia in- icri lo the di leiidani \ iincotl. ilil. 7 Wili. nwAv. ii,'inal plan of a Town, oiind wns iiiid out as a iMsubsiMim.ntly granted ' toHcvoral individuals, I'y tliciii, and others I, fur upwards of thirty n indictment for 8 nai. ip that piece of ground, i£,'liwny, could not bo Allan et al. Trinity, CT Sessions cannot re. unopposed report of ways, rccomnicndiiig rning of a new road, he proposed road has I by the verdict of a ccasion, if, upon in. on and line of road and the object of the Jo not seem identical. Home District. Tri. obstructing a high. 50 Geo. III. ch. 1, when the highway hed, in the manner iiatule, ns when the !it.is in Quarter Ses. ■ of rouds, does not Ith of tm road, nor ch it is to run ; and , all the steps neces. e a highway can be !er that Act, should •oulor to have been idant can be found ierson. Easter, 3 ■kr.a ont in the on. P. as an allowatice I.N THE COt-RT OF QirF.H.N'.S BEN (■II. 41 for rood, doeii not lose that cliaraiter, bi cause it has never been u;-, d ns a road (ir a period of forty years, aii.l a ropy of tin- original plan of the town^'hip 's adinia-ib|,' in evidence to prove sueh allowance, al. though it dies not appear l)y whom, nor i from wint materials, tin? plnri was com. ' piled — Had^'lcy rs. Hinder. Tniurv, :) .t 4 Will. IV. i Where, In an ori:,'inal survey, nn all^nv. i anco for road had b' en uiadu bcl«.rn Certain lots, ana itlterwards, and bifon- i li^lll, yraui.s were issued from the Crown, making the allowance between otlnr lots: Held, that the grant.s must bo considered must correct, and that the plaiiiliff, to whom one of the former lots bdoiised, . was entuh'd to recover for a trespass, I ! comniii'.ed on thnt part of his lot, claimed i as nu allowance f.ir road. — Field r*. Kemp. Ilil. 4 Will. IV. ' I Where, in tre»pas,s for cutting iimb< -, | the question was, in winch of two town, i ships, there was an allowance f .r road ' and the grants from the Crown not being ; very exjilicil, the plainlilf eiidfavur.d to i fupport his construction of the grant by j parol evidence, which was rebulled by the i defendant, by parol Ksiimoiiy also, and the jury found Inr the defendant, the Court held such liuding right, and thai parol evi. dence was admissible.— Miller i'«. Palmer ct al. Hil. 4 Will. IV. HOR.-^i:. It was hold, in an action on a promissn. ry note, given by the defendant for a dif. Icrence in price on an exchange o( horses with Che plainliO; that it was no defence, that the horse received from the plainlill was unsound, the piaintitfhavin!?, immedi. ately after the exchange, sold the horse received by him, and the defendant never having offered lo return ihe plainiitf's horse — Hall vs. Coleman. Jlil. 2 Will. IV. Where a horse was stolen frotn the Plainlitr, and bought by the defendant at public auction, but not in market overt and the plaintiff afterwards seeing the horse, took possession of it, and the dc. fondant immediately retook it : Held, that the piaintiff had a right i.j remke it, no property having passed to the defendant by the sale ; and that, although it was in Ins p-issrssion only (or a moment, yet, the property revested in him, and he could maintain tn-sjiass neainst the ileCfndant lor the le'iikiiig ; and that, as the thief wiis unknown, it was not nrressary to show a prosecution lo conviction.— Bowman ti. Nicldiiig ft. al Aliclui. ;( Vie. IltsUAM) and WiKF— S.e Baro.n and I'tMF, — Fl.MF. CoVKRTK. llJ.VAi.W. ( ONTUACT. Held, ih.Tt ino.iey p.iid on a promissory note, given fir the value of goods, which were to have been smuio'led into the Pro. vince, could not be recovered back, al. though the goods had never been deliver, ed.— Anguish r*. House. Trinity, 1 and a Vic. I-MPRISONVrVT— .^' e F.U.SI: iMrRlSO.V.MENX. I.\Ui:.MMTV ACT. Proceedings were stayed with double costs, under the Indemnity Act I Vic. ch. I'J, after judgment by default and asses, meiit of damages.— Hyatt v3 Anger. i;aster, 2 Vic. In trespass lor seizing fire arms, a justi. ficalion by the di lendant as an alderman of the City of Toronto, and claiming pro. lection under the Indemnity Act 1 Vic. eh. 12, was held an answer to the action, nl'hoiigh the lire arms had never been re. turned.— Lockhart in. Dixon. Hil. 3 Vic. I.NFANT. An infant demandant may sue in dower and if an inlant tenant be sued, the parol I is not allowed to demur.— Flielan vs. Phe. I Ian. Faster 1 Will. IV. I nherc a father took shares in an ad. venture, (the building of a steamboat, lo be navigated for the joint bene fit of the owners,) in the name of his son, the an infant, and afurwarrls transferred tw of Ihe shares lo the df lendant, who received the dividends on ihrm from the associa. lion. Held, that the son could not, on attaining his majority, maintain an ac. lion f)r money had and received against the defendant, for the amount of those dividends — Hall vs. Pidwell. Michs. 3 Will. IV. Infancy is not an inevitable difficulty within Ihe fifteenth section of the Regis. 49 A DIGEST OF CA.SKS DETtRMI.NED try Act. 80 a, to preclu.l. ,|,e noco.Hi,v of to shew that I,h an.wcrB to the ititerroR.. -M „.f,.„t d,.v,..e,. r...,.„.n,„ ,|„. w,ll. .on,,,il...l ngatn.t hin, are un.ruo. L wuhin «,., months fro.,, th. .h.uh of ,h, the Court must be .«^,W,V,/ w„h hL an- devisor, to avoi.l a CMV.vanrr. by the heir »wers. hrfore th,.y „ ,11 nr.l.r h,«Ahs,l,arg,,.. at law.— McLeod vs. Trua.x. if.l. 7 Will IV. IM'OKMA'I'IO.V. See also Crimiwi, Jnformatio.v. AVIicrc!oBninforn.;iiiunf irilicr.inilrm. nation o( fronds as illnrally imported, ihrJc. fcndant plradcd that they wiTc nul import. ed mod.,' ot f.rmn, and on the trial ollbrcd to prove, under this issue, that the jjoods were landed through stress of wcaihrr but was not allowed to do po, and the jury found for the Crown, a new triiil was granted, the eoiirt eonsidcriiii; that the evidence should have been reriivrd. The Attorney General i\i. S;)nli;,rd Hil Will. IV. In an information for an intriwion, the venue may be laid in any Distnol.— The Attorney General cs. Doekstader. Miehs. 7 Will. IV. Wliere, in an information for an inlru. sion, the defendant justifies under a third person, he must shew his own tith, and that of the person imdcr whom he justi. fies, and also traverse the title in the Crown.— The Queen vs. Gould. Hi| 3 Vic. INSOLVENT DEBTOU. Payment of the weekly allowance to a person acting as a Turnkey, is a good payment to the insolvent debtor.— Hyde t)». Barnhart. IIil. 10 Geo. IV. Where a defendant, after ohiainin;^ the weekly allowance, takes the benriit of the limits, he musi give the plainlitr notice of his returt; to close custoily, before he is entitled to further payiueni?.~/i. Trin ity, 11 Geo. IV. The Court refused to discharge a de. fendant in execution, where the plainlilF died, and the weekly allowance was ten. dered by a person, who h.id usually paid 11, although no administration had been granted.— Beard i>«. Orr. Michs. 1 will. On an application for the discharge of an insolvent debtor for nor,.p,ymont of the weekly allowance, afTidavitf nay be read. Monigumcry vs. Robmct. Kastcr. 2 Will. IV. An udidavi; by a defendant in close <-ii«lody, that he is not wor:h five pounds licsidcs his necesrary wearing apparel, is sufficient to obtain u rule for the weekly allowaiice.— .Malono cs. Handy. Hil. 6 Will. i\-. A defendant in custody in execution, for a sum not exceeding XI 00, is not entitled to his discharge under a Will. IV. ch. 3, "ulesshc has been twelve months in con! hu.iueu! ,„ g,iol.~l),:nU,iM vs. Talbot. IM- (! Will. IV. It is not a fufficient excuse for the non. payment of the w, ' ly allowance, that the defendant is in custody in other suits, on which he receives the allowance, or llintaeo-dclendanthasput in bail, after 'lie order f;ir the weekly allowance was grained —Truscott et al. »;s. Walsh ct al Hil. <> Will. IV. An insolvent debtor charged in execu. lion, in ca-se for seduction, is entitled to rchef imdcr 5 Will, IV.ch.3. Hd. 6 Will. Payment of the weekly allowance, after answers have been filed to the interroga. tones put by the plaintiff; is a waiver of any objections to the answers, and the I'l'iinliircannot file further interrogatories without leave of the Court.-Malone vs. Handy. Trinity, 6 and 7 Will. IV. A defendant in custody for a debt not exceeding X2(), is entitled to his discharge under 5 Will. IV. ch. 3, on satisfying the Court that he has been imprisoned three months, but the rule is not absolute in the fir.st iiislancc— King ds. Keogh. Michs. 7 Will. IV. A defendant rendered by his bail, after the return of non est inventus to the capias ad satisfaciendum, is not in custody in mesne process, nor is he charged in exe. cution, so as to obtain the weekly allow, ancc.— Lyman et al. i,*, Vandecar. Micha. 2 Vic. The answ ers of a defendant in custody interrogatories put to him by the plain. •I EU inswere to the intcrroga. Ht him arc untrue, Dnd It' nadnjieil wiili liis mi- Will orilir liia^lisclinrge. *. K'lliiiict. Kabier, 2 :i dil'ciiiiaiil in close IS not worili five pounds iiry wearing nppnrel, is 1 u rule tor the weekly no C8. Iliindy. Hij. 6 u.stiidy in execution, for rif XI 00, is not entitled der 5 Wdl. IV. ch. 3, twelve months in eon. -Dtnhiun vs. Talbot. ^nt excuse for the non. ■I' '-ly alluwnnce, that custody in other suits, VPS the allowance, or has put ill bail, after cikly allowanco was etal. IS. Walsh et al. lor cliarged in cxecu. luction, is entitled to IV. ch.3. Hil. 6 Will. r'ckly allowance, after nicd to the interrogn. nintifl", is a waiver of 10 answers, and the uriher interrogatories Court — Malone vs. "d 7 Will. IV. siody for a debt not tilled to his discharge • 3, on satisfying the en imprisoned three is not absolute in the vs. Keogh, Michs. 7 red by his bail, after nventus to the capias 5 not in custody in I he charged in exe. 1 the weekly allow. '». Vandecar. Miclis. efendant in custody to him by the plain. IN THB COURT OP m'EEN's BENCH. 43 i tiff, after an order for the payment of the weekly all.jwarice, mu.it not only he full, but siiisinciory. — aandurson vs. Cameron. Easter^ Vic. The plnmtifT may file inierrogataries aftt-r he haa made default in the payment of the weekly allowance, and beloru the defendant has made any application for his discharge— tilwo.id r*. .Monk. Butler p*. Thomas. .MiFlis. 3 Vic. I\:^Pi;CT(ON OF BOOKS. A stockh jlJer is not eiritled as a matter of right, lo iiwpccl the .Sio. k U lok or other Books of a Bink, nor will the Court, al. though they have the power, grants man- damns fjrthi; purpose, unless some spe. cial ground be disclosed to warrant it In re Bmk V.C. IM. 10 Geo. IV. IN.6UltA\CE COMPANY. Where, in the declaration in an action against an iiiaurance company, it was averred that certain nffidavita, necessary according to the terms of the policy, were made by A. and B. Held, that such | averment was material, and that proof of I affidavits, made by other persons, was in. ' sufficient. — Alderinann vs. West of Scot. I land Insurance Company. Hil. 6 Will IV. I.vTERLOcuTORv Jdimmejo' — See Practice. INTRUSION. In an information for intrusion, the venue can be laid in any District The Attorney General vs. Dockstader. Miclis. 7 Will. IV. Where, in an information for an intru. sion, the defendant justifies under a third person, he must shew his own title, and that of the person under whom he justi- fies, and also traverse the tit|p of the Crown.— The Queen vs. Gould. Hil. 3 Vic. A continuance in possession of land, under an erroneous impression that it was their own, of intruders, as against the King, after grant made, is not a disseisin of the grantee.— Doe West vs. Howard Hil. 7 Will. IV. iRREorLARiTY— See Practice. JOINT STOCK COMPANY. A partner in a joint stock company, the notes of which are suppre«,.■•••'-■■-•"«. umuaviis on wnicn kubscqucuily eniered, but placed in the the motion was made were entitled and «.. •nil's hands btlor. the ..|e,.,..-D„e more than two terms had elapsed sin^e the Henderson r». Buslced. Easttr.ii Will. IV Arrmt «/"— .Iud,;incnt ciniiot bo ar. rested, aficr jud.^jiin'iit ir, «ivcn on a Je. niurrcr.— Wragg ,-.,. J.,rvi... -rni.ity, C and 7 Will. IV. Litn. — Lands arc bound only from ihf delivery of the writ a^iiinbt ihcin to the- slierift', and ajiidijnient i.s no Inn upon them Doe Mcintosh m. McDoncll. Trinity, 5 and (J Will. I V. Dj.- Auhljo r.s. Ilolhoter. Easter f} Vic. ! act done, no notice having been given to the Justice of the intcniion to move, and ihc motion being made too late to allow him to answer the same term.— Buateed vs. SclioKield. .\Iichs. 5 Will. IV. Action — In an aciion ar,'ain9t a justice for an act done in ihe execution of hia otfice, and judfjiiicnt by default, it is un. necessary to prove notice of action, or ihat the suit was commenced in due time, —.Mills rs. Monger. Hil. G Will. IV. District C.nr/.-The judgment of J ,/^'-^"'*-"'';'--^'"' ^^^tute gives Jus- uiilcds exprcs:^!y authorized, levy such penalties by dis'ress.-Kirkpatrick ««. Askew. Mil. 7 Will. Iv. OjiU,:t,ipt.-I. Justice of the Peace may ; coniitMt for contempt, while in the execu. lion o( his unice out of Sessions, but the commitment must be by warrant in writ. ing, and for a Epecilied period Jones m. Glasford. Michs. 2 Vic. i^rti/.— Although a Statute may require the presence of three Justicas to con. ^"^' "'" an oTeiice, yet one has power to to try the cause. Quaere, 8hould"not"u i '',"'' """ "*'''"'^"' "'"* "^ ^'^^oi'l arrest for venire anrl HiQi>-;n„„= : .- , I "'e same charge, by the same complain. unl, before the time appointed by the jus. tices for the hearing, is illegal King b». of a ducket — Doe Mclnto.sli eg. M'Donell Trinity, Sand 6 Will. IV. .n.'KV. Special.—'Vho costs of a special jury are costs in the cause, and not cosis o( the day.— Whiteheatl vs. Drown Hi) o Will. IV. Special— \ special jury cannot be struck after the commission day of the assizes, but it is no objection to' such a jury, that the shtritT ha.s not summoned sixteen jurors, if a sulUcient number attend venire and distringas issue in such a case, j —Moury vs. Maynard. Michs. 6 Will IV. Special — Where a special jury was im. properly struck, but the dofciiuaiu'a aitor. ney was present, and made no objection. Held, that he could not afterwards, on that ground, move for a new trial Shipnian vs. Birmingham. Hil. 7 will. I v. Special.— After a special jury has been struck, it is irregular to try by a common jury.— McMartin b«. Powell et al. Michs. 3 Vi< Orr. Easter, 2 Vic. KING. A tenant in fee may surrender his es. 'ate back to the King, by act and opera- I lion o( law, as by accepting a now grant tor the same land, or ho may surrender by matter of record, but a surrender not of record, or a surrender by record, found, ed on an invalid title, is insulTicient.-Doe MoDonell et al. ;». McDougoll. Trinity, 3 aiiU 4 Will, IV. F Tin: PEACE. — Justices of the Pcare >i8trjct Cunilf, to build, i Court HoMNt, without III, ffieciiilly auihoris. liix r». Justices of the , 11 Uoo. IV. \tian.—\ criminal in- Jiisiire of the Peace he o(!i(lavits on which ic were entitled, and had elapsed siijce iho liiiving been given lo eiiiion to move, and du too late to allow anio term. — Biutced I. 5 Will. IV. iioii ii(,'Hin8t a justice ilie c.vecutiun of hia by default, it ig un. notice of notion, or meiiced in due time, Hil. G Will. IV. H Statute gives Jus- ye-Uiwa, and impose uctiim, they cannot horized, levy such 1 — Kirkpatrick t«. V. ce of the Peace may while in the execu. f Sessions, but the ly warrant in writ. 1 period — Jones t#. Iiatuto may require Justices to con. one has power to I second arrest for e same complain. pointed by the jus. illegal — King vi. surrender his es. by act and opera. pting a now grant le may surrender t a surrender not by record, found, nsufficient.— Doe Dougall. Trinity, in THE COURT OF QLT.F.n's BF.NOH. 4.'> a The statute of liimtai \nr* liors not run a^fsinst tliu Kiiiir, and a continuanro in posiession of land, under an erroneous irnprccsionthat It was their own, of intrud. ers as a«ain.-t the KiMi;-, after yrant imd-, is not n disKeitin of Iho (jriuilet! Uoe West CI. Hjward. Hii. 7 Will. IV. L.\NDS. Lands hcl'l in fie by a drbior at thn time of his decea»e, mny he Ic/ally takeii in execution, and sold in i!ie harid^t of \u* executors, on a judgment nirainsi them fir his debt.— Forsyth b». IIill. Hil. I Will. IV. Scmble, a person chimin? iandi under a Slieriff's Deed, sold at the suit of an alien, is entitled to recover in cjoctmcn', notwii.istandini; n Geo. 11. ch. 7, it be;ng noccmary to take the objection of aiirn. age, if available at all, bef ire execiitiuii execiifed.— D)-! liichard.fon r.«. Dickson. Hil. a Will. IV. A judgment is not a lien upon lands for the purpose of an ele^'it, so as to avoid the effect of a fieri facias against the hnds, sued out on another judgment subse-iuant. ly entered, but plac-d in i!ic Slieiilf's hands prior to the eleirit.— D^.e Henderson vs. Bcniick. i:,iator, a Will. IV. Lands are assets In the hands of an ex. ccutor, uniler 5 Geo. II. ch. 7, for the satisfaction of debts, and to a plea of plcnc administravit, the plainiilT may reply lands.— Girdincr ts. Gardiner. Trinity, 2 and 3 Will. IV. A judgment against an executor to re. cover de b,)nis testatoris, will warrant an execution against the testator's lamh, on the return of nulla bona to the writ against good? — D >e Jessup v/t. Bartlett. Trinity, 3 and 4 Will. IV. Lands are bound under 5 Goo. II. ch. 7, only from the delivery of the writ against them to the Slieriff.— Doe Meln. tosh »». McDoiiell. Trinity, 5 and C Will IV. A purchaser of lands on an execution at Sheriff's Sale, is entitled to reeovei- in ejectment against the debtor or his repre. sentative, without proof of the debtor's title.— Doe Fisher vs. Chesser et ai. East- er, 1 WiU. IV. Land which lm'< not been described by the Surveyor General, is not liable to be sold for taxes, and a parly rlainiing under a Sherili'tf deed of land sold f.,r ta.xes, mn-t Khew lliat there was no siiflicicnt dwircKsoii the land to di-iiliarge the taxes, although he nr( .1 not show that all the ne. eessnry formalities were attended to, such as advertising, ,i,c., and the deed may bo made by the Sheriff to the assipnee of tlic higlieat bidder.— Doe B« II i». Orr. Hil. 7 Will. IV. \ punlin.'-tr -it sheriff's sale of lands sold under an cxecuiion, may maintain ejectment, without taking actual posses, sion — Don Wilkes ta. Jones. Trinity, I and a Vie. LBASi;. See also RjEiTMf:yT. A di-iresa nisy be made for rent for a sui I etrmin, reserved in a lease payablo ill produce at market price.— Thonipsoii ts. .■\Iareh et al. Hil. 3 Will. IV. Thn Word demise in a lease contains .111 implied covenant, that the lessee shall peaceably enter and e.njoy, and it is suf. licieiit in an action on the lease to state the breach of such implied covenant, with. out having beiorc or otherwiao referred to it in the declaration. — Smart r». Stuart. Trinity, 6 and 7 Will IV. The statute I Will. IV. ch. 1 , see. 53, np. plies only to tenants holding over after the expiration of a term, and not lo a tenan- cy at will — Adnerant vs. Shriver. Tiini. ty, fi and 7 Will. IV. Where a lessee took a lease of premises for two years, and covenanted to leavn the premises without notice, at the end of that time, fit M that on ejectment brought by the lessor at the end of the term, the les.see could not set up a former lease to him for a longer period —Doe Wimburn rs. Kent. Hil. 7 Will. IV. A. being s'.^ ^.L^.n .,iZ I'ZZ md..r .cl, ai,h„„^h i, cannot pa«. a free. , .Sa.all r,. MCvenzie. Tr.nuy 1.1 hold .nterem. will operate a,a lea.e fro,„ | Mucr„.„, _^VMer. , ' " ;.i..-Doo l1:;„:: Z^r :: •- "-■^"r'"'"' ''••..'^'>--er a, ..a phy.. quit.— Doo Lawson b». Coutta. Easter. 7 Will. IV. A term of years cannot be sold under a Fieri facias againat lands.—Uoe Court vt. Tupper et al. Trinity, 1 and SJ Vic. cian and surgeon licensed to practice -c. eordiiiKto the laws „l this Province," .• was held, that proof that he acted as such was insiillicieiit, without shewing a li. cence, l,:it that as he was libelled in hm Wliere a tenant holds over after the ex. , ,; ; ^ ,r" l! "" """^1 "" *"" ifho can without a hre„M, „r,h/.,„ ' ' ''""' "^1'^°"^ "f 'he other averment, and if ho can without a broach of the peace.— Boulton vs. Murphy et al. Easter, 3 Vic. LEGACY. The assent of an Executor to a legacy may be by implication, as well as by ex. proas words, and where the testator devis. cd his house to his wife for life, and also left her some personal property, and the Executors in her absence entered the house to make an inventor)' of the property, and afterwards turned out her daughter, and shut the house up. Held on trespass brought by the wife, that this was suf. ficient proof under the issue of excess Honsbcrger m. Honsberger et al. Hil 7 Will. IV. LEGISLATIVE COUNCILLOR. A Legislative Councillor should be pro. ceeded against by bill and summons, al- though he is sued jointly with others, and if he is sued by capias, the motion should be to set aside the writ as to him, and not to set aside the service.— Hincks vt. Crooks. Easter, 3 Vic. LIBEL. Ju»tifimtion.—h\ an action for libel, the publication given in evidence, consist. ed of the report of a trial in a newspaper, of which the defendant was Editor and liie omission of part of the libel, which did not alter the sense was considered imma. tonal. — Burwcll t». Hamilton. Ilij. a Will. IV. ■Pricileged Communication. — An ac. lion for a libel, will not lie against one of the signers of a petition to the Lieutenant Governor, alleging that the plain tiflT, «s a Commissioner of the Court of Requests, had acted corruptly and partially, pi. though the charges turn out to be unfound. cd, and the defendant had obtained the signatures to the petition, of individuals, who knew nothing of the charges con. tamed in it, such a petition being a highly privileged communication. — .Stanton vs. Andrews. Trinity, 6 and 7 Will. IV. Joint Publication.— A imm action may be maintained against several persona, for the joint publication of a libel.— Brown vs. Finlay et al. Easter, 2 Vic. Criminal fn/ormation.— Where a party on moving for a criminal inlormation for a libel, swears that the libel was published of him, and in his affidavit sets out the libel, which docs not charge him in ex. press terms, nor is made to refer to him by inuendo, the Court will grant the rule, and a verified copy of a letter containing the libel is sufficient to move upon, with. I lhm.„. Th. 1,|„11„„ .^.to .„ fc,U,JK^,;„.„.C™ok,. Micl..3Vi»: fas nltogrther rnntain. anil ai ihr triul, the vitlcncc undf r ihc gp. itiiiiiiiiii „) hiN com- 111 1.1 ilio trial wa§cor. verdict, hut ihr court, » «'vii;cricp was jnad. fw irial wiihdutcosiii. . Trinity II (;,„. p.. itrc ill n (Iccliirniion pluiniitr set out with laractcr as "a physi. [■riscd to practice -re. ul this fruviucc," .' Ihutho acted as such ihuul shewiriff o li. c was lihclled in hia ' was cutiiicd to re. , noiwiihstaiidiiigtho othiT averiiiciii.and s. How. ard. Hil. 7 Will. IV. In case for fraudulent misrepresenta. tion the Statute of limitations begins to run from the lime of the misrepresentation, not from the time of its discovery. — Dixon i;». Jur\is. Miehs. a Vic. A plea, that the defendant and plaintifT, were both resident in a f.ireign country, when the caii.se of action accrued, and that by the laws of that country, the defendant is discharged, because no action was brought there wiiliin six years, the defend, ant and plaintifT having both res^ided there during all that time, was held bad on ge. neral demurrer — Hart vs. Wilson. Trinity a and 3 Vic. LIMITP. The demand on a debtor on the limits for a statement of his effect,", if in writing, must be signed by the plaintiff or his At. torney, and the rule nisi for his commit, mcnt personally served.— Meighan »». Reynolds. .Michs. 5 Will. IV. A prisoner in custody for contempt, may have the benefit of the limite.— Rex vs. Kidd. Hil. Will. IV. The gaol limits of the City of Toronto, do not include the lihertie!- of the City.— King M. Latham. Hil. 7 Will. IV, i'^ 1 1 48 A DIGEST OP CASES D«TRHMINED DnbtoM in runlody on Mi'dnc.nn will n» on fifml I'rDCMn, may liavr ilir tuMii'lil ul ilio hrniw — Moiiigutiitry r: lluwlnnd. Eulor i2 Vir. MACJISTRATE. Sco al»o Jtsrur ny tiik Pe.^ce. The Court wduIiI not grant a new irinl, wan nvcrred in iIib dcclirniion, ihie the dclcndiiiit " niiidi' llic Rfridavil," Held lliiil the avrrinpnl wan nutlicicnlly proved by nn ••xaniincd copy nftlie aflidavit, which was ahown to havu been uaed in the caunr, without pruducinjf ihc ori){innI nniduit, ipr provioK thtit it hud been nworii by the dt lendHiii — I'ltiGerald »«. Web- . I .1 , . ,,. , , . I oy me ot ennHii . — iitj where the plainiifl hid bnn noiimiii.d, i ,' rp , ,^ . ., ,, , , ^ ' I uli^r. I riiiiiy, 2 ik J Vic owing lo tht! aiiHi nro of n inniormi Hitricsi fn.tn Co„rt. the anion b..,n« „«„.ns. a ■ MAMCIOU.S PROSECUTION. Miigintrnlr, for iiti m't d"rir, while in iho '" ''""'■ '•"■ » mnliciom prosecution, the execution of h'm olTioe.— Slinsoii t». Scul left. Miehs. 3 Will, IV. MALICIOUS AURKST In an action for n ni'ilicjoni! arrent, an derlnraiion Haled the trial before the Hon. Lrviua r. Sherwood and A. MtDonell, asxii^iird by Hm Mnjesty's Letters Patent, to tliern and olhtrs nntncd therein direcu ed, mid tli(' rnord in evidence, waa of a . ..., ...,u ...T, ....Win III iTiiiviii,!, TCUS Ul I examined copy of the affidavr, on whiih | ,ri,.| heforo the Honorable Leviu. P. Sher. the arreat wa.t made, coniint; from iIk hands of the proper otTicer, and shewn to have been used in the i-aiisr, ia BcfTicient to prove that it w«s made liy the defend- an*. — Spafford ej. Duchanan. Hil. 4 Will. IV. Case will lie for maliciously Hwearing in an afTidavil of debt, " an npprolien.'ion that the plainliff would leave the Pro. Tince," if strong grounds be shewn, to negative any cau»«--.-i : — ...w ^..rn-i.it i7«utr. i— Green r», Hamdton. Hil.3Vic. MoNKV HAD AND RKCEIVED. When, money has been pmd by a tea. lalor on an agreement for the purchase of lands, which the vendor has failed to complete, the money may be rtcovered back by the Executors, as money had and reccned lo l!i'' u.se of the Testator Smart el al. c». Hro vn. Eiwter, 2 Vic. An action or money had and received may be iiiuinif ined against a Shcrilf, for m.mey levied o,. an execution.— Shuler el ul. r«. Leoimrd. Hil, -J Will. IV. Where ajudirnient was assigned lo the •'fendant, for ih.' jomi benefit of the iilaiiitifl Biiit himself, ond ho received the « hole amount of it. Held that the plain. Iilf could recover his share a, money had and received.— 11. loker ct al. »#. McMil. Ian. .Michs. r» Will. IV. Where ilie pluimuriet to the defendants u farm on shares, by an instrumeni under seal, and the defendants covenanted lode. liver lo him a portion of the crop by a cer. lain day, but before the day, sold the crop, and applied the money lo their own use.— Held thai the ;.', ,T could nol rescind the cor/ „j J,,,, .^j jjjg prupoftjon „ mon.y ,, , . and received Ducat vi. Swsency et al. Michs. 3 Vic, MO.NEV PAID. Where A, sold land lo B. for X285, ind B. sold it to C. for the same sum, and C. sold 10 D., and it was agreed between A. C. ond D., that D. should pay A. w!.o thereupon discharged E. who discharged C, and A. agreed to take from D. land in payment of £900 of the purchase mo. ney, and took D.'s promissory note for £25, the residue, but having subsequent, ly borrowed £95 of D. instead of receiv. ing at once a deed for the land in pay. ment of the X200, he look a bond, that a deed should be made to him on the re. payment of the .€9.5, by instalments, but having made default in the payment of these, he abandoned the bond and notes given by D. and brought an action againat B. for the £225, as money paid to hia use. Held that the action could not be maintained, A. Iiaving lost his remedy on D.'s bond through his own default, ud w DIGEST OF CASES DETERMINED therefore havin? no right to make B. pay ,nrnt of .h« ...m n ^ .he .on..-i,.,..... «,,..,,.. JJ^ ^,,- ;;^;,^; - -"y due.-B„by .,. Lands were morif^nged, and at the time of redemption, by agreement b^nveen the inortgH^rorand mortgagee, the money wa« MOIITGAGE. A purchaser at sheriir '8 sale of lands ■ — "" " ""'•' "' lanns "■"■-■—" "■""K"gee, ine money was sold on a judgment and execution, aubwe. ''""' ''y » conveyance ot the land, made quent to u mungage by the debtor m (ee, ''^ 'he mortgagor to a stranger, but the cannot recover against the niorigugeo in '"""ffige wag not given up, nor was there pos«HMion._IJoe Richardson vs. Dickson. , " '•e<^'J"veyancp, and some years after "''• 2 ^^'"- '^'- i .**'"'J» ""^ titortgagee conveyed the land Where a purchaser mortgages the land '" '*■* '" """""t- H'ld that the pranieo purchased to his vendor, to secure the ' "^ ''"' """'t^Tagor must recover, and that purcliasc money, he cannot during the ''^ "''"'"*"''>' " re-conveyance would be continuance ot the mortgage, sue the ven-l '"'''*'""'■'* ^'^'"^ '''o mortgagee. — Doe dor on a covenant in his conveyance for ' ''^'''^'^'*" •"*• Whilesides. Easter, 6 Will, good title.-Huyck M. McDonald. Alichs. j ^^'• 4 Will. IV. Where A. made a morfgsge of his pro- Whero A. gave an absolute convey iP'^.'V"'"' ^'''""' "' ^'>^'""'' •''"«• ance of land to B. to secure a sum of ,no i ? « '" """ ''""" '""'' P«>''nen' in ney lent by him to A., and B. gave a bond '' T T T'*^"^'"' "■"'""" ''""'"« f«- for its reconveyance, on the payment of f""" ', ' "'"* ""' ^''' "'""l^agee '•' ''»^'"S '"ken possession, sold to A.'s heir the money lent at a certain day, on eject mcnt brought by B. after a lapse of eight for a valuable consideration, who entered into possession and died, leaving B. hia yea,^, the Court ordered that proceedings """""f^"^'"" f''^ '''^'d. 'saving B. hia should bestayed on the payment of princT '■ ,, "7"' "''^ ^''^ ''""■ ""''' """ pnl. interest an.l costs, and refused '1' I 7, '"""*f''««« ''-'.ng a mortgage low the plaintiff to include a s,n,n,„ „„ " rV"!' . '''''"'>' °^ '^'i^""P<>on only, could low the plaintiff to include a simple con- tract debt, incurred on the security of the bond, because there was no writing re specting it, and the Statute 7 Geo. II., ch. 20, under which the proceedings were stayed, did not extend to it Doe Shuter et al. vs. McLean. Michs. 5 Will. IV. Whore in ejectment by a mortgagee, the tenant claimed possession under a lease from the mortgagor, and refused to attorn to the mortgagee (who demanded posse8si(m) and shewed no lease nor any certain holding. Held that he was not entitled to notice to quit.—Doe Samson c». Parker. Hil. 5 Will. IV. Where the instalments in a mortgage were for a larger sum than was advanced, Bnd the mortgagee on discovering the mistake, gave an undertaking in a sepa. rate paper, not under seal, that only the correct sum should be demanded, and afterwards assigned the mortgage, and the assignee brought covenant against the mortgagor for non-payment of the instal. menta as set out in the mortgage, the not bring ejectment against B. who was in by purchase and not by descent, and was therefore not estopped by A.'s deed. —Doe Gillespie vs. Alacaulay. Hil 7 Will. IV. A. having purchased a lot of land, and paid several instalments of the purchase money, but having received no deed, as. signed his right to B. taking a bond from him, that if he should obtain the deed, on the payment by A. to him of iJIOO in two years, he would convey the land to A. Held on ejectiricnt brought by B. the two years having expired, that A. could not treat the bond as a mortgage, and redeem on the payment of the principal, interest and costs, under 7 Geo. II., ch. 20 Doe Shannon vs. Roe. Hil. 7 Will. IV. A judgment and execution in ejectment on a mortgage, will be set aside in favor of an innocent purchaser without notice, so 88 to enable him to redeem on payment of costs. — Doe Milburn vs. Sibbald. Michs. 6 Will. IV. When the mortgagor is in possession. r„,,.. .-r. - ! • ■••■—"■<. iiioiigttgur 18 in possession. O.ourt refused tostayproceudmgsoupay. a mortgage may be presumed satisfied,' \i ■ -.^ mm (ED 1 really due—Bnby t*. II. IV. rtf,'nge(i, and at the time ngrecniem between the rtgagic, the money wa« lice of the land, made to a Btrangcr, but the given up, nor was there »nd Borne years after, fee conveyed the land Held that the prantee iiist recover, and that conveyance would be 10 mortgagee Doe jsides. Easter, C Will. a mortgnitc of his pro. lis at diHorent times, time for payment in without having re. 1 the first mortgagee sion, sold to A.'s heir deration, who entered died, leaving B. his A.'s heir. Held that ee having a mortgage leinpiion only, could against B. who was not hy descent, and itopped by A.'s deed. , Macaulay. Hil. 7 cd a lot of land, and 3nts of the purchase :ceived no deed, as. . taking a bond from obtain the deed, on him of £100 in two 'ey the land to A. ought by B. the two , that A. could not Jrtgage, and redeem e principal, interest o. II., ch. 20 Doe . 7 Will. IV. icution in ejectment e set aside in favor 3er without notice, redeem on payment bum »». Sibbald. r is in possession, iresumed satisfied. I.S TUE COURT OF QUEEN's BE.NCH. 51 *hen twenty years have elapsed from the lime limited tor the p,iyintiit of the iiiori- gage money.- Dos .MtUregor va. Ilawke. Easier, 7 W.ll. IV. It is not necessary in the memorial of amorignge, to n;.:ice the provi;io f^r re. deinprion.— Ilara.ltun t$. Lyons. Laster, 7 Will. IV, A morigairee will not be admitted lo de. fend as landbrd in ejeelmenr, unless he can shew ihat the tenant is his m irtgasjwr, or holds under his mortgagor DjC .\Ia|. loch r.». Rie. M.chs. 1 Vie. The mortgagee of personal property, who sutFers the mongaijor to remain in possession, and make use of tho property as his own, long after the time limited lor tho payment of the mortgaore money has expired, loses all right to the prop-rty as atjainst the creditors of the morirjairor.— Streetjpji. Hamilton. Trinity, I &, ^ Vio. .Mortgagees are not trustee!', within 4 Will. IV, ch. 1, sec. 48, so as to take jointly, where the mortgage deed is «ilent as to the tenancy created.— Doe Shiiler et al. r«. Carter. Hil. 2 Vic. Debt does not lie for the first instalment in a mortgage, before the others arc due. —Forsyth et al. vs. French, et al. Hil. 3 Vic. NEW ASSIGNMENT. I A defendant has eight days to pl^nd nf. i ter a new assignment — linger vs. Crosby. | Easter, 3 Will IV. | NEW TRIAL. I Where the Judge, at A7«i Prius, omits to note the evidence of an imporiant fact, which he charges the jury, is proved, and on which the verdii.t is founded ; quiEre, will the Court grant a new trial, after an affidavit is produced that fuch fact actually e.xistcd, without staring that it was proved at the trial.— Winchester vs. Cornell. Hil. 10 Geo. IV. In case for slander, the Court will not i grant a new trial, on the ground of the emnllness of the damages Atkins vs. Thornton, Miciis. 1 Will, IV. A new trial was refused, where tho jury had found that a Will had been revoked, upon conflicting evidence, thn -.vriglu oi which, in the opinion of tho Judge" who tried the cause, was against tho finding Dje r*. Ch.-holm. Tnmty, 11 Geo. IV. After a demurrer had been detidcj against the plainnlf, and the same facts admitted by ii, were fjund by the jury on ' il.f trial o( o.li. r issues, a new trial, on ilie ground ihat the verdict was couirary to evideiiL-e, was refused.— Ives ts. Hitch- cjck. Easier, 1 W.il, IV. I Oil a traverse of office, tho issue was, wheiher Lane, an alien, was sueti in fee, , ID 1812, of the lands in liucstion. The traverser proved a prima facie title, and a pos.-e3sion was then proved in the alien, abjut twenty years before the trial : no ; conveyance, however, was produced, but a memorial ci a mortgage tor years from the alien to the original grantee of tho , Crown, under whose heir the traverser ' claimed, was proved : Held, not to be 'conclusive evidence of a sci&in in fee by the alien, and the Judge at Sisi Prius, 'haMiig left it to the jury under the evi.' ■ 'ieiice, to find whether the original gran. j tee had conveyed to the alien in fee, which I iliey negatived, a new trial was refused. j —Rex ts. Thcale. Hil. 1. Will. IV. ! Quasre, will the Court, after a verdict j lor the traverser, even on doubtlul evi. I dence, grant a new trial T—/!,. ! Where.in trespass for taking oak staves, j the plaintilf recovered £20, where tho j law on some ot the facts, which were eli. j -itcd at the trial, was doubtful, but it ap. I peared that the plaintilf was entitled to re- cover something in that form of action, and the residue in another form of action,! new trial was refused, although a tender could have ph aded to the amount of tho whole claim, if the action had been in tho oihcr form.— Ballard ts Ransom, et al. Trinity, 1 & 2 Will. IV. Senible, after argument on motion for ! a new trial, tho Court will allow a new ground to bo taken by the party moving, if the justice nf the case require it Vary vs. .Aluirhead. Trinity, 1 &. 2 Will. IV. A new trial was rel'used, where a plain, titfhad been non.suiied, owing to the tcm. pornry ab.sence of his principal witne« trom the C>.url, the aciion being against magistrates, for an act done, while in the 92 A DIGEST OF CASES DETERMINED execution of their office.— Stinaon t» Scollert et al. .Michs. 2 Will. IV. A new trial will nut be granted, where tfie jury have found fur the pluiniifl', and tlie justice of the case appears clearly wiih him.btcause at ihe trial the greaier wci^^'iii of evidence was with the delendant on a plea of the statute of limitations .Mc.Mil. lun t;». Fuirtield. Easter, 2 Will. IV. Where the plain tifl's damages were as. aesaed «t a lues sum than the evidence warranted, the verdict was set aside, at his instance, on payment of costs. — Let.. nard oa. Pawling. Michs. 3 Will. IV. Where a deicndant put off a cause at nisi prius on payment of costs, and the costs not being paid, the pliiintitfproccedcd and obtained a verdict for a large amount, the Court on affidavits shewing that justice ' had not been done, granted a new trial although the defence was to reduce the plaintiff's claim by sc! oft, and not against the claim itself. — Oliver c«.. 'Stephens et al. Hil. 3 Will. IV. When, after a verdict for the plaintiff,the Court had granted a new trial, there being reason to believe (hat justice had not been done, and the drfendant did not avail him.""!'" of the second trial to make a de- fence, the Court refu.-ed again to inter, fore, no reason being shewn why the de. fondant did not avail himself of the second trial.— Ross is. .McNab. Miclis. 4 Will. IV. A new trial was granted after a verdict for plaintifl', on payment of costs, where the evidence at the trial for the plaintilT was not very 8ali.-.faotory, and would have entirely failed, without the testimony of one witness, who, it was sworn, was a men of bad character, and had stated af. tor the trial that he had been hired to give evidence, the delemlant also swearing, that all that that witness had stated was false.— Talbot vs. McDougall. Michs. 5 Will. IV. Where evidence was given to shew that a deed had been procured by fraud, and the jury negatived the fraud, but there seemed great doubt as to the correctness of their finding, a new trial was granted on payment of costs.— Doe Melviii is. tiilchiist. Trinity, 5 and 6 Will. IV. A new trial in ejectment, on the ground of the discovery of new evidence, was re. luscd, the affidavita not being sufficiently expl.tit, and the Court stating that the detendant could bring an action to recover back possession, if his evidence could es. tablish his title.— Doe Brown vt. Fraeer, Hil. G Will. IV. Where in ejectment on a queation of the boundaries of lots, a 3ui-veyor gave posi. tive testimony in favor of the phimifl; founding his evidence on the c.rreetncsa of a line, run by himself, from a poet which he had planted, and after some con. Acting evidence, the Jury found for the phintitr, a new trial was granted on an affidavit by the Surveyor, that he had since the trial discovered that he had been mis. taken in the Post — Doo Case e*. Magill. Hil. 6 Will. IV. Where to debt on bond usury was plead, ed, and a verdict found for the plaintiff, and at the same assizes, an action was tried on n mortgage between th? same parties, to secure the money on the bond, the same defence set up, and the sameevi. dcncc adduced, and the Jury found' for the defendant, the Court refused to set the vrrdiirt on the bond aside Wilson vt. Hill. Hil. G Will. IV. It is nut a sufficient ground for setting aside a verdict and granting a new trial, that a cause was tried out of its order on the cause list, and in the absence of the defendant's Attorney and Counsel, unless it is also shewn that the defendant has some defence,- which it is proper he should bo allowed to urge.— Doyle vs. Frascr. Hil. 6 Will. IV. Where a verdict was given for the plain, tiff in trespass quare clausuni fregit for ii small amount, contrary to law aud the Judge's charge. Hold that the smallness of the damages was no objection to setting aside the verdict, v\hich would under tho circumstances have been conclusive of the parties rights.— Soper vs. March. HU. 6 Will. IV. A new trial was crMiited on payment of costs, where a defeuuant had done all in his power to reach the assizes in time w ith his wiincsxps, hot jiaj arrived about two hours too late, it being suggested also that m- ectmcnt, 03 ihc ^ound new evidence, was re. B not liijiiig sufficiently Conn staling that the ing an action to recover his evidence could as. )oe Brown vt. Fraser, lenton a question of the a Surveyor gave post, favor of iho plaintifi", Mce on the correctness himself, from a post ed, and after some con. lie Jury found for the il was granted on an eyor, that he hod since that he had been mis. -DdO Case ti. Mugill. bond usury was plead, ound for the pinintifT, asizes, an action was JO between th'j »amo ic money on tho bond, t up, and the sameevi. 1 the Jury found' for lourt refused to set the d aside — Wilson e». tit ground for setting granting a new trial, 'd out of its order on in the absence of the r and Counsel, unless lie defendant has gome proper he should be 3oyle vs. Fruscr. Hil. ■as given for the plain. clausum frcgit for a. ary to law aud tho lid that the smallness 10 objection to setting licb would under tho leen conclusive of the er vs. March. Hil. 6 runted on payment of Liunt had done all in e assizes in time w ith \d nrrived about two S suggested also that IN THE COURT OF QUEEN '.S BENCH. 53 there wore merits — Harrington r». Stone. Hil. 6 Will. IV If there be a verdict for the plaintiff on the merits, a new trial will not be eraut- ed, because, technically, a verdict should have been found on some issues tor the defendant, and where if a new trial were granted, a repleader would be awarded, and a verdict again found for the plaintiff. — Helliwcll rs. Eastwood et al. Kasler, fi Will. IV. A new irial will not ho granted, on the ground that the jury who tried the cause, were summoned by a near relative of the party who obtained the verdict, i>ud >^here a new trial has been once granted, the court will not again interfere on a verdict »he same vt-ay, unless it be manifestly against justice.— Pcnn et al. m. K ittan. Easter, 6 Will. IV. It is no c[round for n new ;: ni, il,it a wit. ne»s, who was subpiEns'--- ^i ; •-.-•. attend, having been engajjed on some public works.— Woodruff r«. Campbell. Trinity, 6 and 7 Will. IV. Where verdicts were twice found for a defendant, a second new trial was rotused. — Burnsido va. Wilco.t. Michs. 7 Will IV. Where a new trial is granted on the payment of costs, and tho cost.-! are not paid, the rule to discharge the rule for View trial, and to enter judgment, is abso. lute in the first instance Drean tn. Smith. Trinity, 1 and 2 Vic. In granting a new trial, the court im. posed costs, because the ground on which it was granted, was not taken at nisi prius. — Griinths vf. Welland Canal Company. Michs. 3 Vic. Where a plaintiff was nonf>nited in an action upon a bond, which had been filed M an exhibit at a previous trial, because he was unable to produce if, the non.suit was set aside, and a new trial granted on pay. raent of costs, tha bond having been af. terwards found. Muirhead »*. McDou. gall et al. H:l. 2 Vic. Tho affiJavit of ihe wife of a party to a cause, cannot be read on a motion for a new trial.—ilunderaontwr. Wallace. Kasu cr, 3 Vic. A party moving to enter a non-suit or lor a new trial, cannot take an objection, which he did not urye al nisi prius Hall r». .Sliannon. Easter, 2 Vic. No.NTRDs— See Practice. NONtJUIT. Non.joindcr of a plaintiff in assumpsit is a ground of non.sun Walker et ai. vs. .McUcjiinld. .Michj. j Will. IV. A plaintiff cannot elect to take a non- suit atier a verdict rendered lor the de- fendant, but before it is recorded Whiten et al. vs. Caverley, Hil. 6 Will." IV. A plaintiff may be non-suited, although his evidence supports his pleadings.— McPher-son M. Hamilton. Kiister, 7 Will IV. A parly moving to enter a non-suit, cannot take an objection, which ho did not urge at nisi prius.- Hull i-j. .Shannon. Easter, 2 Vic. OVERHOLDING TENANT. The statute 6 Wili. IV. ch. 1, sec. 53, applies only to tenants holding over after the expiration of a Wa'^n, and not to a tenantcy at will.— Adnerant vs. Shrivor. Trinity, 6 and 7 Will. IV. Where a tenant holds over after the ex. piration of his lease, his landlord has a right to take possession, if he can without •a breach of tlw pca,!e.— Boulton »«. Mur. phy et al. Easter, 2 Vic. PARLIA.MENT. See also House of Assemblv. A member of tho Provincial I'atlia. ment must be suci by bill and summons, and not by capias.— Phcliin r». McKen. zie. Hil. G Will. IV. Partici-lars — See Practice. PARTITION. A petition for a partition under .3 Will. IV. ch. 2 must be vcrilied by affidavit and ihore must bo an adversary party, although the suit be nn amicable one, and one of the parties consenting to tho ptiitition, has to be dropped for that pur. pose. — Ex parte Robinson. Michs. 3 Vic. PARTNERSHIP. When on a dissolution of partncr«hin one partner has admitted a balance, ao. sumpsit will lie ulthoiigh there is no pro. 64 A DIGEST OK CASF,S DETERMINED ir.iBO to pny, and in one casA w here ilic bnlanc- did not apponr tonclnsivfly. and the Judjjc at nisi pims ii-it ii lo the Jury, mor» .liCavorably f.ir the plainiilf, iliati' he might have done, and there was a verdict lor the defendant, a new trial «a.' granted on piiynieni of custs. — MeNicoi M. MeEwen. Easier, 4 A\ ill. IV. An action cannot he maintained In one partner against another, on an olFir to pay a certain Piiin, if he would be a!- lowed to lieep the books nnd collect the i debts. — P-irtass vg. Fanning. Kusicr ! 5 Will. IV. A member of a Joint Stock Conipnnv, not iiicuriwraicd, lending widi the as^cni of the con)pany, a s-uni of money out vi the joint fund, to another member, and taking from him a promissory note, pay- ngainpt another, for converting the part. iierchip propi rty.—Smiib r*. Book. '1 'ri. niiy, 1 & 2 Vic. A p.irincr in a joint stock" company, he notes of whic-h are pupprcs.«td under 7 Will. IV. ch. 13, havii.g reined iho*e notes alter the nippretsion, eaimot put ihem into circulation again f.o us to bind the parinerBliip.—JIall „. Buck. Rlichs. 3 Vic. rATr..vT— Sec ^RA^T.— Cr.ow.v Grakt. I PAY.MENT. In an action of d.bt on bond, where it npi-eaicd ihal there had bee.T extenMve dealing., between the pnri,e». indepen. dcnily ofthebond, nnd that the defen. dam had tent lo the phiiMifli, a large quantity of flour, which thev promised to account for, when ihc piic^ for which it iblo to himself individually, for repay, [sold wa.'= nscertnimd. — Held ihat under men., can recover on the note, notwiih. | the pleaa of eolvi. ,.d diem, and solvit standing thp.t the funds wrro ndvaneod poM diem, the defendant could not cive in from the coimiu.n stock. _ Cnner f*. I evidence, the value of this (lour, aea pay. Tiumison. I nnuy, 5 & 6 Will. J V. j ment on the bond.-MaiUand e. al r, A note given by a partner for a private Secord. Trinity o [jp^ jy " ' debt i.n the name of the fnm, is not bind. \lhcrc the promissory note of » i,M ' ,„ '" "'"^"""y ''^'^ collection, and ho A. and B. representing themselves as j »?wd to give the judge credit on tho partners, obtained C 's a.c.jmmodation i "•^"' ^'^^ f^-es payable by him for business indorsement to a note drawn by A. alone, ! d"nc in the district court, and did endorse but stated by B. to bo drawn for their ! » r-in on the no!e as pavment, and subso joint bentHt, nnd on their joint liabili,v; ' l^fmlv the whole amount was j.aid bv llie note was di.eounled at a Bank, and j '"cc-S ''"' 'ln> nttoincy refused to credit an'v C. was subseqi.ently obliged lo p.iy it, A. having in the mean lime absconded,— lleld Ihat C. could not recover against B. on the note, but that he might mnin. more than the sum first endorsed, and af. terwarda absconded. Held in an action on the note, that the judge could not give the payment by fees in evidence against , ,. '^ ■'"- '^ ^ ■■^" Ml eiuenco against ta.n hm action on the count for monev 'h'' Pinintiir.-Kclchum re. Powell East paid.— Annis et a|. ts. Lewis. Trinity, (j i tr, 3 Will. IV. rir.iiuiKE- S( e Ejectment.- Heir. and 7 Will. IV In an action of assumpsit for goods sold and delivered, a partner of the plain. till" not joined, is a compcicnt wiincss for the delendani to prove payment.— \\il.,on ri. Stevens. Michs. 7 Will. IV. A partner not joined as a defendant is not a competent witness, though re. leased for his uoparincrs. defendam?, to prove payment.— Ferrie ts. Starkweather. Easter, 1 Will. IV. OiiO partner cannot maintain trover PENAL ACTION. In a qui tarn action under the Imperi. al Sinmte 6 Geo. IV. ch. IM, which gi\.'S the penalty one.third to the King, one.third to the Lieuienant Governor, and one.third to the informer, the Court rcfus. ed to arrest the judgment, on the ground Ihat the plaintitr claimed the penally for liimself and the King only.— Jones q. t. M.Chase. Hi!. 1 WiH.iv. Leave was given to compound a penal lllk. .tED for convening th« parf. — Smiili ta. Book. Tri. I joint (lock- ctmpany, ■li ore piip|.rcs.«i-d iindtr 3i Ii3vii,g rniicd tlu.te uppretsiuii, lamiot put iun again so us lu bind Hall r». Buck. Miclis. lANT— Cnow« Gramt. I'MENT. dil)t on bond, where it r had bren cxlentive iho pnriies, indepen. , and that the dcftn. the plair.liffs, a Inrpe nhicli tluy prcmiietd lo ihc jjiif.; for whicli it d. — Iltld that under fd diem, and solvit idant could not give in oflhisduiir, ae a pay. -.Maiiland et al. ti. !ico. IV. ssory note of a judge IS placed in the hands collection, and ho judge credit on tho e by hini for business uurl, and did endorse paymeni, and eubse. mount was paid by refused to credit any rst endorsed, and af. Held in an action judge could not give in evidence against in vs. Powell. East. ECTME.NT.— Heir. .(;tion. under the Imperi. V. ch. IM, which •'bird to the King, lant Governor, and er, the Court rcfus. enf, on the ground led the penally for only. — Jones q. t. f ir I T . compound a penal IN TlfK COtTRT OF queen's BENCH. 65 ■4 action onsfal. Hen. VIII, f>r huyingprc. tended tiilcf, on paying ilie Crown's share into Court.— Gray q. t. rs. Uulirick. Hil. 6 Will. ]V. PENAL .STATUTE. A penal statute is to be construed ac- cording 10 iis Hpiril, and tlio rules ol nutu rul justice, ii.j' according to its very kiitr Rex a. Muldiooh. EaiUT, ;2 WMl. I v'. PuvsiciAN — See Liuel. PLEADING. Use and Occnp itiiin. — In an action of as. sumpsit for use and occirpaiimi, an aver- ment, that one A. B. occupied the prcmi- ses at tlie special instance ar.d request ot the defendant, was held to imply a Miiiri. ciciil allegation of a permission by ,hc plaintifi'to occupy, on a motion in iirrcw; of judgment after judgment by difuiiit. — Mortnit v.i. McCrae. MicIh. 10 Geo. IV. Limit Ihnd. — In an action on a bond to the limits by the assignee of the shcriH', a voluntary return, or surrender, or recap- tion ')y tho sheriff before action broui,'lii,l and before the assignment of ihe bom',, is no plea in bar.— Evans rs. Sl.tw. Hil. 10 Geo. IV. Covenant. — In covenant, the plaintifis agreed to deliver two hundred toisi . of stone for the building of a wall, the de- fendant to pay six shillings and nint pence per toisc, that is, for every two hun- dred and sixtaen feet cubic measure laid | in the wall, when it was erected ; the plaintiffaverred a delivery of one hundred and ninety five toises laid in the wall, but having omitted t, avor how many loisc- at the rate of two hundred and si.^icen feet to a toise in the wall, the declaration was held bad on deinirrer.— Howe is. Newman. Easter, 11 Geo. IV'. Bond — Rent — In debton bond conditi. oned to pay rent, a plea that before the rent was due, the plaintilf assigned the premi- ses to a third p"raou, to whom the defend, ant paid the rent, was held good on de. murrer.— MoDjugai! e*. You.ng. Eistdr, 11 Geo. IV. Lbel — When words are libellous in thsnuelvcs, it is not necessary to aver ihit thoy woro opokeii of the plainiiiFin «ny particular character, or in reference to any particular fact. — Bell r». Stewart. Easter, 11 Geo. IV. Promiss'iry iN'«/c.— In an action on a promisuory note, payable at a particular place, pre9rniin< lit at the place, when tho note beciinie due, must b" averred; Ferric r,«. Kykman. IIil 10 Geo. IV. Striking nut Pleai.~'?Uc Court refused to strike our "everal special pleas, on tho ground that they amounted to tlie general issiir, which w as also pleaded, and sem. I)le, the plfiimiti sh'iuld have demurred. Tnuix r». Christy. Trinity, 11 Geo. IV. Trexpasijinp lundini; Oittle. — Wiicre, in trespass for seizing, impounding, and selling the pliintiir's horses, the defendant pleaded that they were duinnge feasant, >.tc., and the plaintitf replied, that, by tho T iwi.-hip Regulations, fences should be live feet high, and that, the defandant's fences not being that height, but ruinous and out ol repair, tho pluiniitT's horses escaped out of hia close into the defendant's 1 lo.-^e, without the knowledge or consent of the plaintili; tlie replication was held suflicient on general demurrer.— Ives c». Hitchcock. Hil. 1 Will. IV. Assault and Ilattf,ij.— To trespass for an assault and battery, and wounding tho plaiiillli; and biting off his lingers, and count lor a common assault, against two defendant?, the general issue way pleaded by both jointly, but they severed in ihcir pleas of justification, one defendant plead, ing, first, inoliiter inanus imposuit to pre. serve the pence-, the plainiilfand the other defendant being engaged figluine ; go. eondly, the same, and that i-laintiff was disturbing his family, &c., and the other, son assault demesne the jpecial pleas of both being only to tho first count, and '.he plaintilT having demurred specially, be. cause the defendants, by the general issue, imdjointti/ negatived the assault and baU tcry, but by their special pleas, they had attempted to justily the same septratdt/. the C )ur' ovcr.riiled the special demurrer, bit held the pleas of mollitcr mfi.ms bad m general demurrer, tney being no an. swcr to tho first count, and the plea of son assault demesne sulficicn', and that i| there had been any excess, that the plain- tiflr should have replied it to this plea.— B6 A DIGEST OF CASES DETERMINBD Shore M. Shore, et al. Trinity. 1 & o Will. IV. L'rmurrer.-Whi.rc iho (Itlendam lU: murrcu to a rcplicniion td a plia to one u) •evorul count* in a (iicLiraiion, and ihf lilainiifl; liavinj,' recovered on tlie other i-i.iiniR, conleswd his replication l.iid, and entered jiidynient as to that count for the defendant, the Court held that 8uch pro. eeediiiK wan irregular, the proper courne being to take no jud«inenl on the plead. infc's demurred to, the p|ui„ii(T being enti. tied to recover independanily of these plcadinps.— Rochioau r». Bidwell. Ilil 2 Will. IV. Limitations, Statute of —To a plen of the Statute of Limitations in assimipKii f„r money had and received, a replication, that the defeiKlanl was a shcrifT, and that the amount claimed wa.s nn overplus re. maininif in his hands of money levied un. dera writ o{J!fri fariax, was held hnd on Reneral demurrer.-Riitr„|es i-^. Beikie - Hil. 2 Will. IV. Trespnui—Girins; To/or—Where, in trespass quare claiisiim fresit and de bonis asportatis, the defendant makes title in his plea and gives color, the plainiifl' cannot reply generally as to a plea of liben.m tenementum, but must traverse the title alleged or reply specially, and to reply to a plea justifyimr the removal of goods', as cncuinberintf the defendant's, close, that the defendant was not lawfully possessed, or de injuria generally, when the defence pleaded rests upon a title or possession not conneote.l with the personal condiin of the parlie.s, is bad.— Thompson vs. Bren. kcnridge. Easter, 3 Will. IV. night of Way.—K plea of right of way under a deed, must .shew the parlies to the deed.— Smith x,s. Smith. Triiiitv, 3 & 4 Will, IV. . . -• Bail Bond.—ln a declaration by an as. was held bad on special demurrer.— Beata et al. ra. Fields ei al. Trinity, 3 and 4 Will, IV. Shniff.—Astrtsvteiit Law^'-A dcclar. alion in case against a SherifTfornol con. veying lands sold under the assessment law, in which the sale was slated to have taken pliue on the 23ud July, 1830, and that "afterwards and at the expiration oj twelve calendar months, from the lime of -urh sale, to wit on aSiid July, 1831, the plaintifF demanded a deed from the Slier. Iff," was held Kufiieienl im general dc. murrer, and it was held also that it was unnecessary to aver in it, that there was 11') siifl . „,„t distress on the lands, or that ihc plaintiir liad tendered a deed to the Shcnlffor c.vecution.— .SpafTord »». Slier, wood. Easter, 4 Will. IV. llond.-Avcnnenl.—h> debt on bond con- ditioned on delivery of good ntfrcKantabU drain to deliver a certain quantity of whis- key, an averment in the declaration of the delivery of good dittiUery gimn was held had on general demurrer.— Cowper »#. Fairniaii et al. Kuster 4 Will. IV. Trespass.— Plra.—Whctc a declaration 111 trespass contained two coiinii*. the first for cutting down trees, and the second for carrying ihem away, and tl*defendant jiisiified as to ihp culling down the trees in the said declaration mentioned, because- the close in which the said trees were growing was his soil and freehold, where- upon in his own right he committet) - • said several trespasses in the said close .n which &c. and Ihc plainlifTdcmurredspe. cially because the introduction was incon- sislent with the body of the plea, being in bar of only part of the trespasses, where- as the body was in bar of all, the plea was held sufficient.- Osiroin vs. O'Connor toaster, 4 Will. IV. Foreign Judgme„t.~A plea puis dar. JnTe"',: ''"'■" "" " '"'' '''""' "''^ -'"-"'--■-; of a fb^rg^ ju'dTrnTtu ;:;r'i:lmr:^!^:: ^^^-- --continuance, and that the Judgmei: laid in the declaration with the sam. venue, hut the assigoment of the bail bond was stated at Sandwich in the Western District, without laying any venue for it m the Home District, tho dociaration was on the merits, and conclusive between the parties in the Court or countiy where It was given.-McPiiedran i-*. Lusher. Trinity, 4 and 5 Will. IV. Justijication under Proeett—ln justi- mm IX THE COURT OP QUEEN's BENCH. 57 pccial demurrer. — BeaU «' ul. Tiiniiy, 3 and 4 smeiit /.oit;.— A declnr. ri»t a Hlierifffornot con. J under ihe awscssnicnt ."iili; wns aiaipd lo have '■22tidJ„|y, 1830, and and nt ihp cipiralion of lonilis, from the lime of in aSt.d July, 1831, iho I a dcdd (rum Ihe Sher. flii'iem DM general de. s held aiNo ihnt it waa :riM ii, that ihcro was « on the lands, or tliut tendered a deed to the n.— Spafford »». Sher. ill. IV. .—In debt on bond con. ,• ()fgoi)d merchantabU ?rlain quantiiy of whis. lUhe declaration of the ntillery grain was held ■iniirrer.— Cowper »». er 4 Will. IV. —Where a declaration dtwocoiinio, the first reel', and the !>econd •ny, and ll* defendant iiing down the trees 111 mcnil,:ned, because < the said trees were and freehold, where. ,'lit he committet' - > ^s ill the said close m Inintift'dcmurred spe. Iroduction was incon. ly of the plea, being he trespasses, where, ir of all, the plea waa roin t;». O'Connor. —A plea puisdar. 1 foreign judgment luse arose since the that the judgment conclusive between rt or countiy where edran vs. Lusher. .IV. ■ Proee**—ln justi. 4 fying an arrest under mesne process of the Disiricl Court, the caii.-e of actiun cliuuld be averred within the jurisdiction and the writ shewn to be returned Bigcruft m. Clarke.— Hill 5 Wiil.lV. Bond. — rUa. — Di'bt on bond against twodefendaniK, co:>dirijn('d that .\. as a Bank agent should accouiu as ollen as he should be called upon. Pleas that before action brought, A. ceased to bo agent, and that whdo lie was ag»nt he kt'pt all theclauses,&.c.intheC'indition — sue on lly, that A. paid tlie pluintilf.he .imjuiil of the pena ty in ihe bond. Htr the dp. 1 fe.u'iint, if there be suflicienl without thcni , t ) su.nport the verdict, and they are not i material — Rowand vs. Tyler. Trinity, 5 and C Will. IV. Trespass. — Description. — Plea In trespass for i.tking goods Sec if they are not .■ of I n.nl-PUa.-A „Ica by ba,I .u.n .c.ion l...er,s oi a,l,„,„H,ra.,„n, a pica ot „e u„. : u„ ,l,e,r recu«,.ua„ec th. Vy d,d „o, e cp.r« „d,n„„Mra,„r was U, Id bad „n .enc. j cumc bail, concluding .o rbc coun r,' ." " '•■'ol. E.Micr, 7 Will, IV. ..r-^i nnd n...i. ,,i„. H.CK,;; :: ^ ;^;;;^~7•''-«'^-'•- Pii-d s,„l „„d fr.,,b ,ld in lM„,s,lf and not ' Lrre , "" "*''"'"'"" in 'he K,n,. Held ,ha. ,hc rcplica.i n Z i I'Z^ ' ^ n ';" ,:' «'""»' l:"""""- in issue only M,on.or,Hon of s'il and frLiwdliv- ' *•■""■ *^'"""' ' hold, the hi/fliway Ixinjiadrniitrd— Ffrl ! i/„r„" liwdl vs. Ea.s,.vou.| ... al. Ha,„r C U , | ' '"'""' ^7*'-'" "'^ f"' a mail. IV ' " ^^'"•,'^"^"'< arrest under a judge's order an Hanidt.u,. Easior, G Will. IV. I and t> Vic. ^' £,ra;,.._iV.„.--In deb. f„r an escape, ! De i,.juna.~A replica.ion do injuria the Sheriir canno. plead satisfaction pre. vious to .ho issnin- the writ, from which the escape was made, in bar of ihc action. to a j.isiiticaiion under a warrant is good. —Blair IS. Bruce. Trinity, 1 & 2 Vic. Plea.— The defendant may in one plea m., ,, ., ■- >.^i.uii. I ^'cu — ine ueienaant may none Die Munson^,. Hamilton. Easter. G \V,1I. IV. | refer to allegations in another, in .he Trespass.— Lihernm Tenrmentim same manner as in separate counts in a The plea of libcrum tenrmentuin, to n declaration in trespass .pmro claudum frcgit and carrying away the plaintiff's hay and corn, &.c. is bad on demuricr Wilcox vs. Montgomery. Michs. 4 Will. iP^-yucif.—The omission of an averment dcclaraiion.— Beaton vs. McKenzie. Tri- nity, 1 &, a Vic. £:xecutor-Prohate.~\Vhere to an ac. lion on a promissory note brought by an executor, the defendant having craved oyer of the letters testamentary, (which had been granted by the Surrogate Court -r.„„ ., "...■>.■, V "■•" Jitri granted by tie Surrorraie Court Cn.Hif V \, ' ''^''" "''' '^'"^" 'estamentary granted hnnH ^'■^"d'^nt. - Where in a I by the Surrogate Court of the Home Dis. lime IS fixed for such conveyance, but the times for the payment of the purchase money are stated, the pn. nient of the mo. ncy is not a condition _ leccdcnt to the red, the Court gave judgment against tho demurrer.— King va. Claris. Hil. 2 Vic. Assumpsit.— In assumpsit, the omis. sion in the declaration of the statement p . ■ ■ '"' °''J>^'="='i to only by special demurrer. Prom,s.-,o,y Notc.~Jn a declaration I "Miller tJ*. Munro. Easter, 2 Vic 1' atl.",!?"'"'""^ """ ""'"'"= '' ^--""--Where a plain.ifTsuea in a to bearer...., no. ncceesary to aver that I representative character, the ca«,e of i:.. li''';iiiiii PHKVPtil ED fined over" ind deliver. — Dugfjan r». Dorland. pica !)y bail loan action ICC tlr Scj'djd not be. it\g to tlic coiinlry, ia irrcr. — Burns e«. CJrier II. IV. ili'a by bail to an action i-v, that flf.cr tlio i9su. JKninm ilieir prtncipnl, Jlice lu the ijlierill"not I otiBtnera I demurrer. clly ft al. Easier, 7 ' — In case for a mali. a judge's order an tlnraiion that the de. obiained the order, it ol Capias ad res. I, shews eulFicienliy indorsed under the r. Wilcox. Trinity, 1 ^plication do injuria or a warrant is good, Vinity, 1 Sl 2 Vic. lant may in one plea in another, in the iepnrate counts in a vs. McKenzic. Tri. ■— Where to an ac. Kite brought by an ant having craved stanicntary, (which he Surrogate Court pleaded that at the eaih, the defendant District, and that itamentary granted t of the Home Dis. 3 plaintiff demur. Igment against the laris. Hil. 2 Vic. ampsit, the omia. of the statement were made, can special demurrer, istcr, 2 Vic. plaintiff sues in a it, the cause of W THB COURT OF QUEE.n'3 BENCH. 00 •Otion must be stated in the declaration to have accrued to him as such represen- tative.— Hawn et al. v». Mudden el ul. Eastor, 9 Vic. Rfifuctt — Where no time is lnniiod for the doin? ot an act, it musi be done in a reasonable time, and a special request must be averred, but the omiaaion of it is iminaicrial after verdict.— Daily r». Sluv. onson. E.tster, 2 Vic. Aisiiinpnil. — Ilnidine.ix. — In n deelnr- aiioii against a miller for not delivering flour ground by him from wheal sent to him by the plaintiff, on an agreement that he would grind and deliver ilic flour ata reasonable price, the omission of nn averment of a readiness to pay the price ia bad on general deniurrer Cutiiilcr v». Jones. Easter, 2 Vic. iVo Ca. Sn. — A plea of no Ca. Sn. may conclude to the country. — Hall vs. Rut. tan. Michs. 2 Vic. Bond. — InCDHSiatent Plras. — Xon r«f factum and set off may be pleaded to- gether to debt on bond. — Atkincon vs. Clark ct al. Michs. 3 Vic. Mesne. Pro/its. — Justification. — Where in trespass for mesne profits ni;ainst the j executrix of a .Slienff, she pleaded a jusii. fication under a writ of ailaclimeiit di. reeled to llio testator, under the abscond, ing debtor's act aguinat the estate real and personal of a siranger, under which the testator entered and remained in pos?es. aion for the said time, &,c. The plea was held bad on special demurrer as amount. ing to the general issue.— Green vs. Hamil- ton. HU. 3 Vic. POSTAGE. On a letter carried by inland naviga- tion from one post town to another, post, age must be charged according to the distance the letter is actually carried, and not according to the distance between the two places by the post road. — Dickson vs. Crooks. Easter, 11 Geo. IV. POST MASTER. An action will lie against a postmaster for not sending a letter, but the plaintiff in his declaration must aver that the let. ter was his.— Campbell vs. McPherson. POU.ND.VGE. Sec oUo Siir.Rirr. A Sheriff is not entitled to poundage on a Fieri f'ucias against lands, where^afier the delivery of the writ to him, no iiioiie y having been made upon it, ilic plaintiff and delciidant coiiiproinise. — Leeining elal. r«. lliiijefiiiaii. Hil. G Will. IV. \\licre alier u levy on an estreated re. cognizance, the Crown discharges the estreat on the payment of the Slicriff'i fees, the Sheriff in emilled to poundage.— Rcgina ci. Viinnng el al. Hil. 3 Vic. Michs. 3 Vic. PKACTICK. Filing Papers. — No paper is regularly filed until it is marked "filed" by the proper officer. — Caiiipbell t>». .Madden. .Michs. 11 (J.o. IV. AVnr<«;' h'lili-. — A rule nisi which had lapsed, WHS revived in the next term, on an affidavit that it had been served in the country, and was not returned until ufier I ilie term. — Johnson ri. Durand. Hil. 10 ; (uo. IV. I .1 Iran!.— Entering Judgment Whera a verdict was taken in a cause by con. sent subject to a reference, and tlie award having been made in vacation, .Inal judLrnient was entered before the first day of the next term, the proceedings were set aside fir irregularity.— Vincent vs. McLean. Easter, 11 Goo. IV. Judgment, as in ea.ic of a Nonsuit. The rule for judgment, as in case of a non.siiit after a peremptory undertaking and default made, is absolute in the first instance — Barham i)». Shaw. Easter, H Geo. IV. Withdrawing Demurrer A defendant will not have leave to withdraw a demur, rer after argument and judgment given, where the plaintiff has lost a trial Bell vs. Stewart. Easter, 11 Geo. IV. Appearance.— liihe. defendant file com. mon bail, it is a sufficient appearance to a non.bailable writ.— Grace vs. Meighan. Trinity, 11 Geo. IV. Cunsolidation — A rule was granted to consolidate seveiil actions brought by a sheriff, on a bond to the limits. — Leonard vs. Merritt, Trinity, 11 Geo. IV. I Trial at Bar.— A trial at bar will not 60 A DIGEST OF CASES DETERMI.tED be (rrarifprj, merfly f-prausc ihr psrfj- ap.l plyiiift fur II m n liiimstcr Dv ralmerl M. Uicksun Triiiiiy, 11 c;«o. IV. I Fart.cuUtro.—UoiiJ. _ J,, ,i,,|,i „„ ^ y^^,; | to Ihe Uuv.Uf, a rule (,,r 'he |)iirliciil«rs o( ilie broai hi-a h ,11 bi- grained.— Chun h m. Barulmri. 'I'nniiy, 11 Gi>o. IV. Sinking nut Pirei — 'f lie Court refused fo itriko mil sovcnil plpo^, on tiie (rroiiiid that tliiy ninoijiit«>i| la ili* /.'carni iksu,., which was hIho picndcd. — 'i'riiiix t". Chrisiy. Tiiniiy, II (ico. IV. I fi/.iiiiiomun — Kfliirn ^o.— Upjii a man. I daiiiiiH nixi, 10 Jii3licP8 ot"lho Peace, ihry i bIiouIJ rcUirn Ihe recorded prcicccdiiiijn i had Ij-fore ihcni, and iioi cidlaHTnl mat. | ler not njihraccd in ihn fiiirics of the | Ciiurt.— lii'x r« Justices IIoiuo District. Trinity, U Geo. IV. HuU to return Fi. Fa.— A. rule to re. turn u Fi. Fu. cannot i?'!ue oiii of the of. ! flee of n d(|iuty cl.Tk of tlip Crown in nn ! outer Di^iriit,— Anon. Michs. 1 Will. IV, T.me to Jirp'y, ij.r.— lf, nl'ior a drniand j oi' replication or rejoinder, the plaintiff or j defendant requires time to reply or rejoin, I I)e inuiii oliiain a .ludjre's order or a rule of' Court, for that purpose.— Sniull cs. .Mac. i kenzie. Mlchs. 1 V\ i||. IV. Non-iuil. — V\ he. re n caupe was called . in at Nirti Prius, mid neither attorney nor ' counsel for the plaiulili" appearinir, the jn. I ry were sworn and iho plainiiff was non. j suited, the Court refused to set aside the non.suil except on the payment of costs. i Falls VI. Lewis, llil. 1 Will. IV. j Amendment after Asuesmnent of Con. ' tingfiit Unmnsres. — VVIiere there were i i»8ues in fact and law, and before any de. ' cision on the issues inlaw, the plaintiff proceeded to trial, and assessed con tin. | gent damages on the demurrer, and judt'. ment was afterwardsgiven against him on the demurrer, he was refused leave to amend — Phillips rs.Sniith. llil. 1 Will.IV. Notice of Motion. — Where notice is re. quired to he given of an intention to move to set aside proceedings for irregularity, before damages are assessed, it is sufiici. ent if it be given on the commission day of the Assizes. — Dougall is. McLean. Hil 1 Wi!!. IV. Appfaranrr.-~W\\nn Ihe drfenrfant ap. peam l.y nilorney, nnd the declaration is ■eried on ihp nuorihv, l.oi n notice of as- "CH-niiiit on liie dilcn.hini hijiiwlf, iha (iprvicp (i| Ihe notice m irrei/nlar.— Fcrrie ri. Tonnahill. Hil. 1 Will. IV. Attaehmcnt —.S)eriff.-An attachment a^'airiil a (•h'.rifrior not briiii{iiig in the b >dy, nfer having been ruled mi to do.can. not be f,'rafitrd by a Judyc in Chainbers Ilex t't. Leonard. Hil. 1 Will. IV. Informnlinn — Putting off Trial On pulling otr the trial of an information for pTialtic-, on ilic application of the lelen. u'ant, cosU) will lie imposed in the »ania manner m in civil ca»e». — Rex t;#. Ivea. Raster, 1 Will. IV. InJortrninit on Fi. Fa.— The Court will not iiuerlerc to reduce the amount f n. dorsed to be levied on a Fi. Fa. on a merely legal ground.— Maiiland v«. Se. cold. Easter, 1 Will. IV. T,me to Plrad.— Particulars.— The dc. fenilani had the same tinio to plead aflej the delivery of pariiculars under a Judge's order, as he hod when the summons for particulars was returnable. — Waslihurn i'«. Fiitheigill. Faster, 1 Will. IV. Time to Plead.— Attorney Where a bill is filed against an attorney in vnco. lion, he has until the next terra to plead MeCanndy vs. Foster. Easter, 1 Will. IV. Judgment, as in case of a Nim.suii The rule forjiulgincnt, as in ease of a non. suit.nfter a peremptory undertaking to pay the coats of the day, and go to trial at the next Assizes, is absolute in the first in. stance, if the plaintiff fail in performance 'of either of the conditions Bergin vs. I Whitehead. Easter, 1 Will. IV. j Term's Notice.— A term's notice ie ne. cessary before any further proceedingRcan be had, after four terms have elapsed at ler judgment by default.— Baker c«. X3ar. ret. Michs.S Will.IV. Amendment.— Where a verdict was taken generally on a declaration, several counts of whic.!; were bad, but Ihe plaintiff had abandoned the bad counts at Nisi Prius, and the verdict had been entered generally by mistake, the Court gave leave to amend by entering the verdict on tbe ^m hen (he drfffnilint tp. iifid the decUruiion is V, 1)111 n tliiticr din*. I'ri.liiiw liijiiJK'lf, th« ' m irrf pillar.— Kcrrie I Will. IV. riff.— An ntinrhment not bringing in the en riilpil hu iu do.cun. nil^je in Clininber*.— ill. 1 Will. IV. Iting nff Trial— On |( an mfiirmntion for liraiion of the Ittien. mpusod in the i>ania :a»c(< — Rex t#. Ivct. 'V. Fa.— The Court ;ducf> thp flnioiml f n. on n I'i. fa. on n .— Mmtland »». Se. IV. irticulara. — The de. timo to pli-nd aftw ilfirs midtr a Jndge'a eu the surainun." for •nnblr. — WaslUjurn , 1 Will. IV. Ittoninj Where a n atliirney in vnca. ipxtlrrm to plead . Easter, 1 Will. IV. »(? of a Nim.suit , as in case of a non. ■ undertaking to pay ad go to trial at the Uitc in the first in- fail in perfurmance itions — Bcrgin vs. Will. IV. term's notice ie ne. her proceedings can 18 have elapsed at- It. — Bilker ««. Car. ere a verdict wag leclaration, several ind, but the plaintiff lad counts at Nisi : had been entered le Court gave leave the verdict on tli« IN THI COURT or (y un uiioriiey does not waive the irrei;uluriiy.— UuUurd M. Wright. Michs. U Will. IV. Interlocutory Jmlirmntt.—iicnMt, an interlocutory jndgnieni ih irregular without au incipitur on the roll. — lb us void.— Font '.ul r». lirnlmin. Ilil. Will. IV. Apprnrnnfe. — Appi aranre according to the alalulc by tl.o plamiilf tor the de. feiidiiiit must be filed as of the term the writ is returnable, and cannot be enter- ed later than itie end ol ibo vacation oi Appearani-e.—W'huu one of two defen. i 'he Term after. — /4, ITJ""""';"'' '""'.""-■.""'^■'''"^'■•' I r.r„.-,.Y<,|,Ve.--.-V,er,:,'. no,ic« i. r. with process, and an application was made ;,.„s,ie wb. re f.uir terms, althMi^b net o to set aside the arrcNi, wuch was not nro. u. ... i, i i ■ „„^i 1 ,1, I , , '""''"'• ,>t''r. nave clapsMl without any oroceed. ceedcd with, and the plaintiff entered an :,„, „„ i , i . .' t" '^'^tu- f 1 1 I r , "'Mntf. aiij vWieroiilier ifsun jo ned in tres. appeara ce f„r both de^ndan,,, as on j p,„ „^„,,,, ,,, dcfenda .„. . d tht .erviceablcproces-, and hied and served | ,„„., uf nearly four term^. on ' ,h " dec ara .n and signed interlocutory jud^ ! was arrested under a jud .^l ier .i d nient, the proceedings were set aside for I pm i„ <,o.,i.| ,,,:, „ , , ^i ^'''l'"' '""^ irregulanty.-Kauntz r«. Cameron, et al. ' no ue , a r ' , , "''"' MichM.aWill IV '"";*"" ''a Pr"'-''«'Ji',f.' as entitled die plain. , ' ■ ., i"1 '"g" """gainst the other defoiidantai. Appearance. - W nere a declaration | ter four terms, wiiheM.t a erm's notice.- was served oa an Attorney, who had not | Yule .,. Cum. y et al. IIil. 3 Will IV appeared, and no appearance was enter. ed for the defendant at all, but the Attor I, ''""""''""■"'— Am nmenf nent was al. ncydid not deny (hat he waa acting for ' 1?*'''''^ ''"'"'""''""'' "' "" "'•i:;^'"'! Fieri iai.mfral.erwar,!. '■.,""'"!■ "^'- '' '""^ ^oe" P"»«<1 i" ,isr>n,ent.~A defendant ha. lar alter an ajipearance iu person to plead ' eight day. „, p.-esd to a new a,.iOTmeiit by Attorney.-y6. Ul,,,,, ,., e,,„,j, !;„,,„, 3 \«7j';f Amenament.—Lenvf was granted to : p/.„ wi.^ro , 1 amend the poatea and judgment hv ,Z^ ■ ^'^"-^^ ''"" l''<^»' "ere not entitled A DI0E8T Of CASES DITEHMIKBD iljterloeulory judgment, ihe Court id the jut'Cmiiil amdc. — Avrrill el al. M, Com. •ron. Ettsinr, 3 Will. IV. aii'j "/ Vruettditifir — After the service ofnon.liiiilul.il! priico-, % ini\^v'ni. Richardson. Trinity, 5 Will, record for irinl. llild that il was irrcKU.IlV. eluded before declaration, the decliralien, ind not the writ, was hild to be the com. mencement of ihe anion. -Cameron r*. FcreiKon, Mil. 4 Will. IV. Sflliiif; aside Prorrfilingt. — On mo. lion to Bct B»ide prorecdincn f.)r a defect in form, copies of the defective proceed. iiiij« mint bo produri'd by the party apply. Hi! 4 Will. lar to enter them on ilic record wiihoiii their bcinjj in the Crown otlicc, or wiih. out Icavt; from the Court or a Judge. .McKinnon vt. Johnson. Michi. 4 Will, IV, Appearanrf. — Where the dttendant ap. reared by attorney, but ilio njiiienranri paper wob niislnid in the Cfiwn Oirice, and ihe piniiitiir entered appearance ac. cording to the siiiiote, and served a decln. ration on the delcndnnt, and procci d; d to final jiidirnient, the proceedings were set aside for iirecnliiriiy Kynn ot al. nn. Leonard. .Michs. 4 Will. IV. Venue — The C»nit will not allow the plain.iti to amend his declaration, by chanfiing the venue aficr issue joined, un. less under very special circumstances. — Crooks va. House. Michs. 4 Will. IV. Commencement of Action Scmble, the declaration is the commeiicenienl of the action.— Leach «». Slcvenson^ Michs. 4 Will. IV. Staying Praeeedingn — Where proceed. inga were stayed in a ."ieLond ejeciinenl, tanlil thccosis of a fmincr one for the same premises were paid, and notwilhslnndinp the plaintiff proceeded, ihe proceedings W'ill. IV. lutrrlncutnry Judgment. — Where ihe plninlilf after notice of trial given in an action of debt, had leave to amend his de. clarnlion inone of the counts, and coun. lermniiileil his noii> <■, and not havin;i{ ser». I'd the anieiidfd dtclnrniion nor any new demand of plea, .<.ii,'ncd iiiierloculory judg. nirnt, and afterwards entered final judg. ment and issued execution, the proceed. injr^ wore sot aside for irregularity. Randall, q. t. ti. Taggart. Michs. 5 Will. IV. hilerlnciitory Judgment. — Where an interlocutory judgment was set aside by Judge's order, but notwithstanding the order, the plnintifT proceeded and assessed dnmnftes, the Court set the proceedings aside. — Staut3 cs. Reynolds. Michs. 5 Will. IV. Term's Notice A term's notice is necessary aficrjudgment by default where no proceedings have been had for four terms lb. Irregularity — It is irregular for a plain- tiff to proceed to trial, where there are is. sues joined on some pleas, and not on others — Ferris r». Dyer, et al. Michs. 5 III ' were set aside, and an adidavit made by the defendant, which, from its contenls, was clearly to be considered as entitled as in the first cause, was held sufficient Doe Lake vs. Davis. Michs. 4 Will, IV, Commencement of Action.— In ca.se for a malicious arrest, where the action in which the arrest was made wassiill pending,when the writ in case was issued, but was con- Non. Pros. — It is irregular to sign a judxment of non. pros, without filing the original paprrs in ihe judgment cflice.— Lyman vs. Cotter. Michs. 5 Will. IV. New Trial.— Irregularity.— Where a new irial was granted on payment of costs by the plaintifli', who served three appoint. ments fnr tha tavatw.r, r^r. ♦!,« J»f»,,J__. and the costs were at last taxed without i^'4ki«i ID milon, thi) decTtrttlon, M luld III be tho com. nr'i'in. — Camrrun t«. ill. IV. 'Ofrfilingt. — On mo. icociliiiKK fir a rfpfrct hr drfrrlivp pror^cd. ''er, et a!. Michs. 5 rregular to sign a . without filing tha judgment office. — :hs. 5 Will. IV. ti/ar/ry.— Where a -)n payment of costs rvcd three appoint. last taxed without IJ» THE C0t7«T or Ql-tB.l's BtNCR. •a ditbur««m«nM, and thi plaiiililT ti!n(iered the aniuunt, wliic'i ihn di'lviidiiiil nliixd »o recuive Willi mt lliu dioUurwiiii fii'«, which ihe pLiiiiiitrwuuM nai pny, biii pi.>. ceodvd again lu irial, and ubiuiiieil u ver- dict, the Court rtliiM'd lu art it Hside. — Tliuinpion i'». Sewell. .\Iirli». 5 Will IV , Irrf^iiUrity. — Wlirr.', ntiir pruec..^ •ervcci, (he parini cuine to a setilcineiii, ■lid thu pluiniitT as(rc( tried for want of lim*, ■ mil' fir jii'ts'iinni as iii cunv i>l a non.iuit wan reliHe.l. _ IJ.ink U. C. »«. Cuveti et al, .Micli^ 6 Will. IV. ll.ii>k L'.C. («. Ilxhun* et al. Miili.-. ti Will. IV. Juilitmml as in rase nf a S'in-suil.— One ol two diiindunis caimm move lur |iidi(in('iil as III case ol a niiii.nuit. — 8pif. t ird vs. Uiahaiiiin el al. Michs. 6 Will. IV. Judgment as I'l case nf a Non-suit.-— A rule f '!■ jiidgiu'"' as in case of a mm. 'iiii was disc' ' -»(.•,! m the piTenipiorjr iiiiilrrlakiiiK .itliout rosi.^, when owing lu ilil.iv orcasi ni 1 l>y an »<, : I'caiion of ilia defendant, \ >e p ;rili{f li.i'l lecn prevent, od from onlorn,' iiinmcof n irialon the rininilssion day i . it- Assizes, and tha ik'Iriidant irtiisrc lo consent to its beini^ entered afterwards, until the plaintiff t witnc'-'i'a had i^oiie home, and he knew ili.il ihr pliiiniilfi'iiuld not proceed to trial. — Tenniinan r». Wince. .Miclis. 6 Will. IV. Particulars. — Promissory Note.— Where a dcclnniMon contained a count upon a promissory note, and the common oouiils, and the plniiilitf under an order lor parliciilars, gave an account lor goods sold and delivered only, but at the trial ilio (lifendant cross-examined upon the note, and afterwards at the close of tha plnintitf 's case olilaincd a nnn.suil, bc- i.'uusc llic note was not incntioned in tho p ii'iiculars, the non-suit was set aside rtiilioui costs. — fliyflipw PS. Spragge. Hil. 6 Will. IV. Appearance. — Where one of two defen. lants appi'iii" by Attorney, and tho other iocs nil, it is irrcC'ilnr to serve papers for both on ilie Attoniev of the nni'. — Hufl'c*. .AIoKean ft al. Hil. 6 Will. IV. Hail.— .Ittoriiei/ for. — Where a defend, int was irrcsted and gave bail below, and the bail below put in bail above, the notice if which WHS sif,'ned by their Attorney as lefeiidant's Attorney, ond all tho siibso. liient papers in the cause were served on his agent, and judgment was obtained and the defendant taken in execution, ihe Court on affiilavita of these facts, and that the defendant had no knowl' Ige of tho pro- 'eediriyr, -tt iiicm all aside wi.h costs. — McMariiu vs. McKinnon. Hil. 6 Will. IV. u DIGEST OP CASES DBTEBMIIfKD Notice of Tna/.— Notice of triul gi»en instead of notice of asscsamenl is irn-cu. lar.— Billiii(fs ct al. vs. Jleid. IIil. G \v,||. IV. wag got aside oflcr a year, the proceeding bein? void— Lane ts. McDonell. Hil. 7 Will. IV. Notice of Trial — It is not sufficient to Pnt, .,<■„. T ■ I » -■"....<:"/ Miiui — IMS not sumcient to J:.ntryfor Tnal.-K cause cannot bo j leave a notice uf tnal in the office of ,ho TritT ' for as,es»n>,.nt or tr.al af-er j defendant's Attorney, it must be left with the commission day of the A"»iz<>H, with. out the consent of the defendant Hall ts. Griswold. Easter, C Will. IV. Srrvicc of Papers — It is irregular to •erve papers on an Attorney's Clerk, at a distance from the Ailoriiey's residence or place of business — Tiifuny vs. Bullcn. Easter, 6 WMI. IV. Notice of Trial— Where a demurrer was taken off the Hie as a dilatory plea by theorderof a Judjrc, and the defendant having pleaded, the plaintiffprocceded to trial without serving a notice, but merely informed tliedcfendeiit that the cause was entered for trial, and afterwards took a verdict, the Court set the verdict aside, the defendanthaving been entitled to short notice of trial.— Truscott et al. vs. Goldie et al. Easter, 6 Will. IV. Irregularity.— Grounds of Motion— .\. party applying to set aside proceedings for irregularity must come piompily, and if he first apply to u Judge in Chambers, he cannot afterwards move in term on any other grounds than those taken in his first application.— Arnold vs. Fish. Easter, 6 Will. IV. Declaration.— Attorney's name.— It is not necessary that an Atturiiey's name should bo subscribed to a declaration if it be stated in the commencement Crooks r». Davis et ol. Easter, 6 Will. IV. Arrest of Judgment.— Adcr judgment on a demurrer, jiid^'incnt cannot be ar- rested.— Wragg tiff. Jarvis. Trinity, l and 7 Will. IV. Irregularity— Nolle rroser,ui -Where in trespass agiiinst several defendants, the plaintiir went to trial, after ho had rcceiv. ed notice, that the proceedings were irre. gular as to one of the defendants. Held that he could Jta/^errm/iW cure the ir. regularity, by entering a nolle prosequi as to that defendant.— Campbell rs. Bruce «8l. Michs 7 Will. IV. some person doing business there Brew. er vj. Bacon. .Michs. 7 Will. IV. Points ^cserfct/,— Whenpoinu are re- served at a trial and indorsed on the Re. cord, but the Judge makes no entry there- of on Ills notes,the record must govern,aiid juilgment cannot be entered until the poiniH are disposed of.— Taylore*. Taylor, ilil. 7 Will. IV. Iiiterlucutory Judgment— Demurrer .■\ plaintiff who has demurred to a defend. ant's plea, and demanded a joindcr.cannot sign interlocutory judgment for the want of such joinder, his proper course being to add it himself.— Murney vs. Heron. East- er, 7 Will. IV. Computation.— A foreign bill of ex- chance may be referred to the master for the compulation of the principal and inter. est and ten per cent, damages under lh« Provincial statute.— Com. Bank vs. Allen ct al. Trinity, 1 and 3 Vic. Computation — Service of Sule.—The affidavit of service of a rule nisi to com. puie must shew (if a personal service be not effected) that the copy was served at the defendant's place of abode, on some grown up person connected with his hodse. hold.— Mittleberger vs. Whitehead et al •Michs. 1 Vic. Amendment.— Striking out Name* Whore in an action of replevin lileid were several defendants, and the pmrntifT de. clarod against them all, although only one had been served, an amendment was al. lowed by striking out of the declaration the namos of those not served. Zavilz vs. Hoover et al. Michs. 1 Vic. Interbcutoiy Judgment An interlo. cutory judgment signed in the coiintty, after the return of a Judge's summons in town which operated as a stay of proceed. ings, but of which the Attorney cmild not have been aware, was set aside as irregu. lar, but without costs.— Carlisle »». Nia. i Appearancc-Wh^re no appearance IgaVaHarb^'^^dD:'); t^Z. "m"- iras entered, au interlocutory judgment i 1 Vic. ""'"'" " .„.s^^tHE^*fr,•.'^■'■^«--=^nj■i3M^^,tfBffi»J*riWJ^ IN THB COWRT OP QUEEN 's BENCH. a year, the proceeding VI. McDonell. Hil. 7 —It is not Bufficient to iai in iho office of iho iy, it must be left with buitiness there Brew. s. 7 Will. IV. — When points are re. id indorsed on the Re. niaki'H no entry there, scord must govern.and be entered until the jC— Taylor t». Taylor. Igment— Demurrer dtiiiurred to a defend- ndrd a j()indpr,caniiot idgment for the want proper course being to rney r». Heron. East. foreign bill of ex* ■red to the maeler for he principal and inter. . damages under the Com. Bank »». Allen 2 Vic. nice of Sule.— The )f a rule nisi to com. a personal service be 3 copy was served at i of abode, on some ected with his hodse. •s. Whitehead et al. king out Namel r replevin thel-i were md the piamtiff de. II, although only one nniendniont was at. of the declaration not served Zavilz bs. 1 Vic. ment — An inferlo. ed in the country, Fudge's summons in 18 a stay of proceed. Attorney could not set aside as irregu. — Carlisle v». Nia. 05 Venue.~\i is no wiffi.-ient ground for Jurlsm-nl an in raur nf a Nnr.vi:t.~- chmging Iho vemu", ihat a pfrn TIh will be required as a w I'licssBt one Afsijo, ment as in case of a ni .tijn to diHohiirije a rule forjudg- noii.siiit on the per. .,. , ' ---..- « ,.„,...^,.,, „„ i,,„ i^r. will t>c an Bssonnie at another, and that empiory undertnkiii!: niuot be made in the places where tho two A-*izes are lo be open Court, and lie siipi.oi ted hv affidavit. held, are at such a disinnce from each — Hullu-nr in. Barnliarf. Hil.2Vic. other, that it will be inipos-xihle f ,r bun l-.hnir Pl„„.-h is not i,rc'r«snry that to attend at both.—Smuh i». Jackson, npocial pleas should be served, if they are *■ ' ^"'' fil'd i' isHuffitient.— KingP». Dunn. Kasu Time to Declare — Tho plnintitT may , er, 2 Vic. lake out a rule f.ir a month's funh.r time ' C«n..«/i,/„//„„._VVboro after a rule to todeclare.—Stebbineis.O'Grady.Michs. consolidate, the piainiitf had leave to ain>'nd his declaration by increasing his Notice oj Tnal.-V,heTe after i=siie dam^'es Held that it was not necessary joined and notice of trial -ivrn, the defen. to serve the amended declaration nor a dant has leave to plead de novo, the new demand of plea— Kelchum et al. e». plamtifT cannot proreed to trial without a Hamillon. Easter, 2 Vic new nolice.-McMUlan vs. Fergusson. ! Appearance - If .here be no appear. Micbs. 2 Vic. I n„g^, ,.„„.„,] j^r the defendant, proceed. Judgment as in the cage of a Nonsuit, ings are void and not merely irregular— -The rule for judgment as in ra«e of a N.chol vs. McKelvey. Easter, 2 Vic noti-suit after a peremptory undertaking: Judgment as in case »f a Nonsuit.^ •Dd default made, is absolute tn the first The Court will sometimes order that a mstance—.Mastin vs. Garrow. Miclis. 2 rule f„r jud-rment as in case of a non.suit "'■ j i^hall be absolulc, unless the costs of tho Appearance.-A defendant who has day are paid inacei.ain time.- Warren pleaded a plea which is a nullity, cannot object, as a ground for scuiiig aside an interlocutory jud''ment signed after such vs. Grant et al. Easier. 2 Vic. Judgment as in case of a yon-tuit Where the venue is laid In the country, a - I •*-..".- ..T luiu 111 lui: couniry, a pie?, that there is no appearance entered, rule for judcmcnt as in case of a nonsuit -Brewster r,. Davy. Ilil. 2 vic. \ will be granted, when two assizes have Time to Eepli/.—A plaiiiiifrhas eight ' days to reply after a demand of replica- tion.— Robinson vs. McGrath. Hil. 3 Vic. Tertn's Notice — The rule that a term's notice must be given, where no proceed, ings have been had for " four terms, docs not apply to proceedings by a defendant. —Doe Young rs. Hinman. Doe Young ts. Smith. Hil. 2 Vic. Judgment as in case of a Nnn.snit. A rule for judgment as in ease of a non. suit cannot be obtained, where there has been a lrial,and if obtained, and the plain- tiff enter into a peremptory undertaking, hois not bound by it — Warren vs. Smiih. Hil. 2 Vic. interlocutory Judgment. — It ia not ir. regular to sign interlocutory judgment in the office of s Deputy Clerk of the Crown in the country at an hour, when by rule of Cnitrs tht- prineipai ofnco in town not open.— Hall r». Hunter. Hil. 2 Vie. passed wiilmut the plaiiitifr proceeding to trial.— Sunt rs. Biillen. Ea~ter, 2 Vic. Staying Proceedings.— Tho Court re. fused to stay proceedings, until payment of costs in two oilier suits pending for the satne cause.— Richmond et al. vs. Camp, bell. Easter, 2 Vic. Venire — When- there arc issues in fact and in law, and both sets of issues go to the whole declaration, it is not necessary that the award of the venire on tlie Nisi Prills record should be tam ad triandum quam ad inquirendum. — Beatly vs. MoMasteis et al. Trinity, 2 and 3 Vic. Time to Demur.— Vi'herc the last plead. ing concludes to the ciuntry, if the oppo. site party demur, he must file his demurrer within the time allowed to reply after a demand. — Regina vs. Gould. Trinity, 2 and 3 Vic. Rules.— Parties namcu.— Rules as well as affidavits must be entitled with the M A DIGEST OP C/SES DETERMINED ehrialian names of the parties to the suit in full. — McNeil vs. AlciNcil. Trinity, 2 and 3 Vic. Noit.suit.—Lnaee to Mote If at Nisi to amend on payment of cost*. — Ediion at. ILgadone. Michs. 3 Vic. Particulars. — Nun. Pros After the defendant lias oliluined a rule ii)t pirticu. Priusthe defmdiint m.)ves for a iion.suic lars, and the plaintilf has not delivered on u point which the judge uvtrrults, hut 1 ihcm, the Court will irranl a rule that un. reserves leave to inov,;, aad the plainiilf's i less ,(,(. plainlilf shall deliver them within counsel does not objict, Ins acquiescence j a certain tune, the defendant shall be at to the leave rcfcerved must be presumed. ] liberly to siirn jud£;meiit of Non. Proa — Ducat vs. Sweeny ct al. 'I'riuity, a & 3 Vic. Nolle Prosequi. — A Nolle Pros? ;'.; Shaver r.s. Corry. Hil. 3 Vic. Piirliculnrs. — Promissory Note. — [ VViicrc ;^ note \i declared on, un error in cannot beenli'red iil'ierjudiriiieiit.— Roach j ila dale, when given in a bill of parlicu. ts. Potash et al. Rlich.a. 3 Vie. i lars under n judge's order is immaterial Appearance Where the defendant ! Harney a. Simpcon. Md. 3 Vic. appealed by attorney, but the plaintilf! Particulars.— Promissort^ Note. — A having overlooked it, entered appearand for him accordinsr to the i^lalutc, and served the declnrulion on hiins-elf person, oily. Held iliat alter ju. •codings, unless so expressly declared ,., ilie rule Hastings vs. Champion et al. Michs. 3 Vic. Setting aside Proceedings. — Wiiere in debt on bond, and breaches assigned in the declaration, die plaintiff enlcred his verdict as if the action had been debt on simple contract, and entered judgment in assurppsit, anrt issued a capias ud satisfa. ciendum in debt, on which the defendant was arrested, the Court set the Ca. Sa. aside with casta, and allowed the plaintiff and the notice does not describe what the irregularity is, if the proceedings are set aside, cofits will not be allowed. — Henderson vs. .Tones. Hil. 3 Vic. Appearance. — Where the plaintilTen. tcrs an appearance lor the defendant ac. cording to the statute, he is not bound to take notice of any attorney for the defend, ant unless he pleads. — Gourlay vs. McLean. Hil. 3 Vic. PRINCH'AL AND AGENT. A general power of attorney to an agent lo sign bills, notes, &.C., and to superin. tend, manage and direct, all the affairs of the principal, gives him a power to indorse notes, and an indorsement to pay to the trustees of an insolvent firm, without naming them, is sulHciently certain, on siiewing who they arc, and that they aot in that capacity, to vest the note in them, so as to give their indorsee the right of suing upon it. — Auldjo vs. McDougall. Trinity, 3 and i Will. IV. h^ hu ^^oniw miiawmiwiiiiiiimiiiMm int of costa. — Edison hs. 3 Vic. 'uii. Proa. — After the nc(i a rule fur particu. ill' has not delivered I i;rant a rule thai un> ill deliver thetn within : defciidaiit shall be at meiit of Non. Proa.— III. 3 Vic. Promissory !{ote. — ;lareii on, nil error in 111 in a bill of particu. order is immaterial.— I. Hil.3 Vic. ^rnmissory Note. — A lared on, need not be II ol particulars, and delivered after aura- iny order for their de. -Street vs. Cameron. -No term's notice is lore than four terms erdici, before the en. ussell vs. Miller. Hi!. jtke. — Where notice ?n of any irregularity, lot describe what the he proceedings are I not be allowed. — >. Hil. 3 Vic. lere the pluintiffen. or the defendant ac. ?, he is not bound to torney for the defend, ids. — Gourlay tis. VND AGENT, r attorney to an agent &c,, and to superin. reel, all the affairs of m a power to indorse ■meat to pay to the vent firm, without Rciently certain, on 3, and that they act est the note in them, idorsee the right of djo vs. McDouffall. . IV. IN TnE COURT OF QVEEn's BENCIf. 67 PRINCIPAL AND SCRKTY. A surety ^cannot bw a co.suryty joinMy Willi the principal, !.,r the amount of a debt of the principal, which tho .surety has been obliged to pay — Burnhain cs. Choat ct ai. Easier. 2 Vie. Where separate actiono tire brought against two sureties, the di.icharge of one does not operate as a discharge of the other — Hiirwcll vs. Edison. .Vlij|is.3 Vic. After a cognovit given by a principal and his nuretics jointly, tho Court will not set aside a judgment entered against nil, because time has been given to the principal, without the conHontofiJie sure, ties. — Mowat t». Swizer ct al. Miclis. 3 Vic. PRISONER. Suptrsedras.—WUeu^ a defendant in custody put off the trial of the cause at one assize by afTulavil, and at the next be. ing aware that the plaintiff had given no notice of trial, prevailed upon him to enter l:is rcLOrd notwithstanding, and had it placed low on the* docket, and the cause was not tried for want of liine. Held that the defendant was not supersednble nn the ground that the:plaintifr had "not pro. ceeded to trial within three terms.— Gor. don Ks. Fuller. Hil. 6 Will. IV. Discharge — A defendant in custody for a sum not exceeding iJlOO, is not enii- tied to be discharged under 5 Will. IV., ch. 3, unless he has been upwards of twelvemonths in close custody in gaol. Denham vs. Talbot. Hil. 6 Will. IV. Discharge — A defendant charged in execution in case for seduction is entitled to relief under 5 Will. IV., ch. 3. — Perkins t\9. O'Connolly. Hil. 6 Will. IV. Discharge. — A defendant in custody for a debt not exceeding X20, is entitled to his discharge under 5 Will, IV., ch. 3, on satisfying the Court that ho has been imprisoned three mouths, but the rule is not absolute in the first instance King vs. Keogh. Michs. 7 Will. IV. Cog-wot/*.— Where a debtor in custody executes a cognovit, it is not necessary that an attorney .ihould be present on his behalf. — Lodor vs. Healheote. Hil. 7 Will. IV. I Supersedeas. ~ A debtor dischatg«(J I from custody by .Supersedeas, tho pluiatiH" not having charged him in execution in due time, cannot be taken again on the ■ame judgment. — Uurn t?. St-i>ii?ht. Trinity, 1 and 2 Vic, FmviLEOE— See Pa rliame.vt— Arrest. PROCESS. iyrrric,:— Sheriff's Office.— \ writ of e.npias ad n-Tpondeiidi ■ i can only bo served by a Slienff, or lawful deputy or bailiff.— Whitehead vs. Fothcrgill. Trinity, II Geo. IV. />ui/?er.— A writ of capias ad respond, endum is not the first or original prceins in Dower— Phclan r». Phulan. Easier. 1 Will. IV. Corporation — Canada Cmnpany.-. Pro. cess to compel the appearance of the Ca. nada Company could not be sei ved on ;ho Commissioners in 'his Province.- Cooper vs. the Canada Company. Easter, 1 Will IV. Service.-. Vieripi, Office.-.\ writ of capias ad rcsp„ndeiidum must be served by a Sheriff or one of his officers, even where the Deputy is a party to the suit,— Ruttan r*, Ashford, Mielis, 4 WilMV. Teste — Indomemenl.—A writ issued in vacation mui-t be tested the last day of the preceding term, and if bailable be indors. ed with the sum sworn to, and on motion to set aside a bailable writ for i.-regularity, costs will be given, althou'ri, the defend! ant has asked for more than the Court can give, as that a bail bond shall be delivered up, when no bull bond has been {j.ven Armstrong vs. Scobell. Michs. 4 Will. IV. yotice to Appear.—Soticc to appear man outer District to process issued from the Home District, is irregular.- Forsyth vs. Hartwell et al. Hil. 4 Will. IV. Indorsement — A rule to set aside ball, able process for want of an indorsemtat of the plainiiif's claim for debt and costs, was refu.-ed, where it appeared that the omission had been supplied two hours af- ter the arrest, and before the application was made.— Smith vs. Smith. Michs, 3 i Will. IV. Service — Where a judge's order was obtained by the agent of the defendants' 9 6» A DIGEST OF CASES DETEHMINED attorney to set wide the service of the procets, and both the plnuiiifl's and do. fcndant's attornies being ignorunt ot it, the first declan.'d and the otlitT pleadrd, but on being aware of the order, the dc. fendanl'8 attorney gave notice to the plain, titf'b attorney that ' ; would move to set aside his proceediiigs i.7 irre 'arity il li. went on, the Court refused to set asiu the proceedings, jere Ij-'ing no uffidavi of merits, and the defendant;,.aving pre. eluded himself by his plea Simpson ts. Milthison. Ward vs. Ward. Miclis. 4 Will. IV. Indorsement. — Bailable procens issued by an Attorney, plaintiff, must be indorsed with the claim for debt and costs. — Wash. burnc*. Walsh. Michs. 3 Will. IV. Service — Sheiips Officer Ifadefend. ant accepts process, served by a person who it ^. jt a SheriiT's office/, ne cannot afterwards on that ground set the service a'ide — Arnold vs. Fish. Easter, 6 Will. tv. Copy — A true copy of non.bailable process must be served on the delendani. — Scott ct al. r«. ilifFcrnan. Michs. 7 Will. IV. Notice to Appear The notice to appear should be directed to the defendant by name, " to the within defendant" is not sufficient — Browne*. Whitehead. Mirhs. 1 Vic. I Service.— Sheriff's Officer Service oi ' process by a person, not being a sheriff's ' officer, was set aside for irregularity vviili costs. — Landrigan vs. Callaher. Michs. 1 Vic. Service — W here at the time of the set . vice of process, inspectioi of the original was demanded and refused, the service was set aside with costs. — Miller vs. Wallace et al. Michs. 1 Vic. Iiiditrsement— alias Writ It is not necessary to indorse an alios bailable writ, issued under the statute, with a notice of the plaintiffs claim ; and where the de- fendant puts in special bail to such a writ, he is not thereby prevented from object, iiig to any irregularity in the arrest.— Roes et al. vs. Balfour et al. Michs. 2 Vic. Notice to Appear — Since the passing of the statute, altering the style of the Court, notice to appear in iho " King's Bench" instead of the " Queen's Bench" is irre. ■ Kular. — Kllerbeck vs. Sherwood. Michs. ; 3 . ic. I Hervice. — Boundaries. — In moving to I set aside the service of process, because served in the wrong Dutnct, the affidavit on which the motion is made, must stats that the service was not on the confines, or that there was no dispute about bouii. dnries. _ Cryskr vs. Thompson. Michs. 3 Vic. PROFERT. i'^ee also Bond. Where a sealed iiisiniment was pleaded with a profert and produced at the trial, and subsequently in term, but was after, wards mislaid, and on a second trial the defendant agreed to admit the execution, knowing that it had been mislaid, and secondary evidence was gont into, the de- fendant objecting to that secondary evi. dence, but not to any secondary evidence, the Court refused to allow a non-suit to be entered for the non.prnduction of the instnimenf — Rowand cs. Tyler. Trinity, Sand 6 Will.IV. The admission of the execution of a bond under a judges order, does not dia. pcnse with the necessity for its production, where it is pleaded with a profert Less. lio ts. Leahy. Hil. 7 Will. IV. PROMISSORY NOTE. Presentment. — In an action on a pro. missory made payable at a particular place, the declaration must aver a pre. scntment there, when the note became due — Ferrie vs. Rykman. Hil. 10 G eo. IV. Consideration — Failure of— It was held in an action on a promissory note given by (he defendant tor the difference of price, on an exchange of horses between him and the plaintiff, that it was no de. fence, that the horse received from the plaintiff was unsound, the plaintiff having immediately after the exchange sold the horse received by him, and the defendant never having offered to return the plain, tiff's horse — Hall r». Coleman. Hil. 3 Will. IV. . — Since the passing of r the style of the Court, iho " King's Bench" uccn's Bench" is irre- vs. Sherwood. Michs. irien — In moving to ! of process, because District, the affidavit n is made, must state not oil the confines, dispute about bouii. ». Thompson. Michs. PERT. !o Bond. istriiment was pleaded produced at the trial, 1 term, but was after, on a second trial the admit tlie execution, id been mislaid, and was gont into, the de. o ;ory n.re.— Di.xon es. Paulet al. Michs. 6 Will. iV. P.-f»p/'ji'/;;?.i;/._Aprom:s'orynoten!Bdc payable "t . piiriiculnr pla.'t? nmsl be pre. ' sentcd ihcr tin day it ialis due, c.r the holder camiot n(X>\>.i. — Tiiisirjit t'l al. I vs. Laf'ourgc. t'gfii'r. 6 Uili. !V. Partner — A. an ! I .r. nrfsciitincfthem. bpIvcs as partner*, obtainedC'i uccommo. dauon iiuiorsf-ment to a note drawn by A. alone, !juf slr.ied by B. to be drawn fur their joint benefit and .ju their joint liability; the j note was discounted by A, and C. was | subsequently obliged to pay it, A. having j absconded. Held that C. could not re. cover o.tainst IS. on the note, but that he might on the count for money paid Annis ot al. i;». Lewis, Trinity, 6 and 7 Will. IV. Dearer. — Indorsement. — An action may be maintained against the indorser of a promissory note made payable to bearer — Scott el al. ts. Douglass. Trini. ty, 6 and 7 Will. IV. Loss. — Where a promissory note had been enclosed to an attorney's clerk in the course of business and mislaid. Held that secondary evidence of it could not be given without calling the clerk, although the attorney was called, and swore to his belief of its loss — Groves vs. Clarke et al. Trinity, 6 and ■? Will. IV. Accommodation Indorsement A se- cond accommodation indorser who has paid a promissory note discounted at a bank for the benefit of the maker, may maintain an action on t\," note against n prior accommodation i /.-•A-r, and may indonse it over after it is ' . _Rr.jeze ts. Baldwin. Hil. 7 Will. IV. Bearer.— Urclaration. — In ft dec;ar«. tion by the huMc^r ol a pruiii.jsjr)- hf.c payable to bearer, it is not iii'ittjar/ lo a\er that the note was "assigind over," and duhveKjd to lit plainlili'. — Di.^^^ai; r«. Borland. Hil. 7 U ill, IV. CunsiJnalion.—Faihire of~\\ li ro A. being soi/id in fee of iiiids made jointly with B. « i< :iT, of these lands to C. tak- ing pro.'ii-^.xy notes from C. lor 'he amount of the rent, payable :>.i the rent would becomo due ; lue day lij'er the ex. .ouiionof the lease, A. died mteaiaef, din! then B. died, and hi ' Exr-.; itors su.;d C, on the notes. Held :)it i:.. action o. \!J I' )t be maiiilained, the consideration ou which they had been given, having failed. — Mei win et al. i;*. Gates, Easier, 7 Will. IV. Eeneieah — The indorser -f a promis. sory note, which had been iiiiendcd as the renewal of another note, i.ut not having been so used had been left in I'le maker's hands with the indorsers' na.i'-s upon it, and was received by the plain; iff from the maker before it became due, fi" a valua. ble consideration, was held liab;.' on the note.— Larkin r». Wiard. Trinity, 1 and 2 Vic. Presentment. — Christmas Day A promissory note which falls due on a Christmas day, being a Monday, must be presented for payment on the preceding Saturday.— Wells vs. Wall. Trinity, 1 and 2 Vic. Copies — Annexation o/— Where the holder of a promissory note proceeds un. derS Will. IV., ch. 1, he must prove at the trial that copies of the note were an. nexcd to the declarations filed and served. — Alalloch vs. Norton. Michs. 2 Vic. Foreign.— A promissory note made and indorsed in a foreign country is negotiable here within Iho Statute of Anne. Thompson r«. Sloan. Michs. 2 Vic. Particulars — Where a proi- ■<><'y note or bill of exchange is declared ^snot necessary to mention it in a ,. , arti- culars. — Street vs. " .men ixhs. 3 Vic. Notice of Dishonoi ^ ■ . .juijicient if the indorser of a prom w , .ote receive IN THE COfRT OF queen's BENCH. 71 notice of ils dishonur in iho saiiif liriio an he would have rcccivi-d it by post, ol. lh->=J,;.'h the notice was sent to him by |iri. si'Ohanil niiii might liavp licrn dvlivtreil 'i>;iy^ooner — Nassau c*. O'Rf.ilv. HJI. •J \ iC. Deffnct. — Forgfry. — In nil action by the Iks', iiidorace against ijio last iridorscr ofa I'rrimistiiry iiuie, it is no defence that the najies of the maker and of ilje prmr indorsers are forged.— Eastwood tt al. vs. Wesley. Michs. 2 Vic. Affidavit of /)/•A^ — All .-'ni lavit to hu'iJ to bail on a promissory note iniif't ehew the amount for HJiich :he n iie was drawn.— Norton vs. Lailiani. .Alielis. 3 Vic. Bearer. — Iniliirsrmrnl. — Where A. made a promissory note payable to U. or bearer, and C. indorsed it as a surely to U without B.'a indorsement. Held that B. could not recover on the note against C. as a maker or on any other ground Tliew I)*. Adams, llil. 3 Vic. Particulars. — W here a promissory note is declared on, an error in ita dale given in a bill of particulars under a Judge's order, is iminateiial.— Barney vs. Simpson. Ilil. 3 Vic. Presentment. — Wliere a promissory note is made payablj at a particular place, presentment there is necessary, al. though the maker had no funds there, but as between the payee and the maker pre. sentment there at any time before action brought will be surticieiit, if there were no funds at the day. — Henry et al. vs. McDonell. Hil. 3 Vic. QUARTER SE.SSrONS. Justices in Quarter Sessions cannot de. cline confirming the unopposed report of a Surveyor of Highways, recommending the alteration or opening a new road, on the ground that the proposed road has been finally rejected by the verdict of a jury on a former occasion, if upon inspec. tion, the alteration and line of road re. jected by the jury and the object of the pending proceeding, do not seem to he identical. — Rex vs. Justices Honir. Di= trict. Trinity, 11 Geo. IV. Upon a Mandamus nisi to Justices of Iho Peace in Sosdion-, tliry should return the recorded proeeedinps had before thrm, and not collateral matters not embraced in ihe entries of the C.iurt.— 76, Jusiirrs of the I'eaee in Sessions can. not npi>|y the Disirici funds to building n new gaol and court house, uiihout an act of Parliament speciiilly confernng that au. thoriiy.— Rex rs. Justices Newcastle Dis. iriel. Tniiily, 11 Gio. IV. W heir a person had been convicted be. (ore Justices of the Peace, and fined, and on appeal to the Quarter Sessions, the Jn^lices there admiued more evidence than had been heard on the conviction, and ihi: aecu.-ed party was acquitted, but on reeeivinj; ihe opinion of the Attorney General that the nddilioncl evidence siiould not have been admitted, they con. firmed the conviction and ordered it to bo recorded but look no notice of the ac. quiital, the Court made absolute a rule for a mandamus commanding them to en. ter the acquittal. — Rex vs. Justices of Bathurst. Miclis. 6 Will. JV. On an npjieal to the Quarter Sessions under4\Vill. IV., ch. 4, evidence may be received which was not offered to the convicting Justices.- 76. Hil, 6 Will. IV. RECORD. See also Evide.vce Practice. Every roll and record filed and docket, ted in the proper oflice, will be presumed correct until the contrary be shewn, al. (hough it may appear that the entries were not examined with the original papers by the officer at the time of filing and docket, ting.— Prentice vs. Hamilton. Easter 1 Will. IV. REGISTRY ACT. Sec also Deed. A sale of growing timber is within the Registry Act; and where A., by deed, sold growing timber to B., and afterwards conveyed Ihe land on which it was grow. ing to C, without any reservation, and C. registered his deed first. Held, that C.'s deed must prevail, and that B. could not maintain an action against him for cutting the timber, although C. had notice of B.'s deed, before the registry of his own Ellis i'». Grubb. Michs. 5 Will. IV. It is not neccs.sary, in the memorial of u A DIGEST OF CASES UETEUMI.NEU a UMtlg&gn, iQ notice llic proviso for re. dcmplion; and an action cannot be brouj^ht agninHt n r<';,'i!)tcr fur ircble dninaKC!, un. ilnr llm tciilli Ncction ol tlir KcpiNiry Acl, 3j Uoo, III. cli. o, iiiilil lir has tioen on. viclpd, under iIjiii Hcciimi, of .Hornc oll'i'iicu fur which he xhnll furfril his oflicr. — Ham. ilton r». I.yons. EiiNter, 7 Will. IV. Infancy is not an ineviLibln difFiculty, within tlip fiflci'Mlh sprircm ol the R<'i;iiiiiH diirreiii cuiitinii. midv, Kii 118 to allow J fur liiiicotitsagiiinflt a cluar case uf culiu- E mttdc out. — White i Vic. SOCIETY, y wa.s given by deed the Methodist Epis- idn, nccording to the } ficnernl or annunl t when any of tho :rK^ Recpiests Aft will bo refused. — Seoit r*. F'crgufson. Scott r*. Kooke. Mii-lis. 3 Vic. RIUEAU CANAL. It a defendant rests his defence on his acting under thu slalute for construriiiig the Rideaii Canal, he should be prepared to prove that the act he Ju.sli(ics was regu. larly done under that statute, and not rely merely on his being employed in the coiistructi(m of the coiial. — Phillipps t#. Redpalh. nil. 10 r.Qo. IV. A contractor or workman, quarrying stone in the land of o third party under the Ridcau canal act, gains no property in the stone, which, immediately on being quarried, vests in tho owner, and conec. quently an assignment of such stone by the coniraf tor or workman is void. — Mittle. bcrgcr »». By. Hil. 2 Will. IV. Trover lies opniiist a lock keeper on the Ridcau canal for not delivering up lumber seized and detained by him under the pro, visions of the Ridcau canal Act for ob. structing the navigation, on a tender of the charges occasioned by such seizure, and the removal of the obstruction. — Gould vs. Jones. Hil. 2 Will. IV. SATISFACTION. A. being in execution at the suit of B. recovered against B. a verdict for a small- er sum. Held, that proceedings in A.'s action against B. should be stayed, on B. acknowledging satisfaction on his judg. ment for the amount of A. 's verdict against him. — Bethune ri. Brown. Michs. 7 Will. IV. SEDUCTION. Case for seduction will lie for damages arising from loss of service by a subsequent connexion, although ibcre be strong evi- dence to prove that the defendant , in ac< ^W 74 |l '' i compli^liinif liJK purpose oui(..»!y, i,i>. boon jfiiiliy o( a ra| • - i ' j-lr r.; I! .„• . Miclin. 4 Will. IV. Thr ('i)urt rrl'u.'-' I n new Irinl in ciiso for icduction, wliori! ilie jury had f.iiuHl /l,r the defendant, on cvidrncr clciirly ini. peachinff till iputi/.~\n trespass aeainAt a ■'^liiTlIf for seizin;.' ami lakini; jjoods it is pulh(ienl to prov. ilmt ilic Deputy SherifT seizid tluin colore olficii, w iihoiit proving the writ of execiition,or Kiviii« evidcnct- of his being Deputy Sheriff, otli(Twi.se than by senernl r. p •• 'ion.— Holt tt. Jarvis. Ti .,i.:....iV. Money had and rcefirrit.— Demand.— In an union njrainst n Sheriff for the over. pliiHcif moiKy levied under an execution, 111'' I'lainiill iiiiist prove a demand of the money before action broiu^ht Ku/?glpi r». Beikic. Michs. 1 Will. IV. Trinity, 3 and 1 Will. IV. Jiittt to Hflurn Writ — A rule to return a writ of Fieri F'anas cannot issue from the oflice of a Deputy Clerk of the Crown in an outer District Anon. Michs. I Will. IV. MuiiJamua.— Taxfg. — Vfhexc land* were ». Id under the assessment law, for non.pnynieiii of taxes, on the Ist March, ^ .. u,,,.u,iui. iieni,ij]ui UIC I f";- '• niAia, \ni ine ji.^i .Tinrcn, settlement of the demand [igaiiist the plain- i ''^"''^' "'"' °" "'i'' 1st March, 1831, the tiff by the defendant was a payment, and I °"''"''' of the Innd paid the amount of the rnttl/lrmfkn *■>»». ..1 -_ . .■' 1 . IniirflinBr^mitnnir nnA »,.,^^t.. . I could not be treated as a set off, having been made after action lirouffht, and, that as without it the plaintiff's claim was the larger, he was entitled to a verdict, with nominal damages — Sherwood i-s. Camp- bell. Hil. 6 Will. IV. A. being in execution at the suit of D., recovered against B. a ve Vt for a sniu'l. er sum. Held that proi .lings in A.'s action against B, should he .stayed, on B.'s acknowledging satisfaction on his judg. mentfor theamouiit of A.'svor'Ii. : ;aiii9! hill' — Bethune vs. Brown. Iliichs. / Will IV. A notice of set off cannot be given be. fore the plea of the general issue is filed BickcrstaffD*. Merchant. Hil. 2 Vic. A Judgment, obtained by a principal, cannot beset off against a judgment oh. taiued by Lis debtor against one of his aurelie"^,— Gray vs. Smith. Hil. a Vic. A plaintiff cannot by declaring special. ly, where he could recover under the mo. ncy counts alone, deprive the defendant of hia right of set off.— Miller vs, Munro. Michs. 3 Vic. purchase money, and twenty per cent. be. sides, as reqiiir(>d by the statute, to the Deputy .Sher.ff, whocollccied taxes for the Treasurer of the District who was then ab. "ent, and a short lime afterwards the pur. ohiser at the sale, demanded a deed of the land fn.m the Shentr, who refused to ?\se if. ho Court refused a mandamus to comp' nm,8lating,that the owner was in time, and if he were not, they would not interfere summarily, but would leave the purehas.'r to his action.— In re Sheriff JVewcastlr District. Easte •, 1 Will. IV. Ahachnnnt. -Whore a Sheriff after having returned cepi corpus to a v, .it of capias ad r> ..dondum, had been ruled to 1 nu!i in .;„. Iwh , and attached lor not ng the rule, and the attachment was [• vr. -t aside for irrcgulaniy, but ll 1 existence, (he defendant 1 aci;,.,, iad been discharged by su. persedens, bail above having been t in and allowed, but the rule of allowance was not served. Held, that a second at. taehmcnt against the Sheriff, on a second ruic to faring m liie body, issued eight months after the setting aside oi the first «N THE COURT OF QUBE.v's BBSCH. 7S I'pcrf — Demand •n»chr«*nt Bri.l ilif d. l>tor*» diMchiirgcs Wi» irregular, ari.l ihe Court or.l.rr.l it lo U ».i BiMdr.— R,.x VI. Slicn/r Nm^rara DUlneJ. Trinity, I and 9 \V,II. IV. Bond lo the' Limits — T) dcl.t „n a bund to lheliiiiii»by ihf SlnrKT'sinxiL'iid" it in a (food plea, tli.il aCtcr brrncli ani lie. fore thn aspijrnincnt to ihfi I'laiutiir, iho ShoritrdrliviTrd up tlio liond lo tiio dtbt. •r to be canccllfd, but it in md answer that the debtor was Hurremlcred nftrr breach, if the bond were not oancelled. I.flmcsurier t>i. Smith. Kuater, 'i Will. IV. Difd.—Ejfftment.—hi ejectment by a purchaser of iandn aold umler arj execution the Sheriflfs deed i» pninu facie evidence that the writ w «s delivered lo the SherilF and the lands w . ed and sold undrr it. - Doe Spatfurd tt. Brown et al. Easter, 3 Will. IV. FaUe lifturn — Where a writ of Fieri Faciaa wa.'^ placed in a Kb. (fa bunds i against tht /vids of a dtfendunr, who was in possession if persons] properly in liis ' District at the .•, and h levy was made but the piainti. icrwards conipronaised i lilh the dtfendanl, receiviiiK payment of; bisdcbtby instalmc' . but giviiii; no.dl. i rectioiis to Ihe SI. il ,., liscliari-e iho de. j fclidant's proper!. . l^^.^^^ ,i,,, „ ^ ,(,,1,^,, , of nulla bona by ilio Sheriir, - ! months i afterwards, when iho dtfcndun had ab. fconded without saiislyiriir ihc balance of, the debt, the plainlitrcouf I not sue for a ' false return, as he was pit rlu1 by an order of the Judge | v[ the District Court. Held, that an ac. tioo for false iniprinMninenl would not |i« iliuiiiM the .^iHriir, f..r taking the debtor on the stHrond sum nder, ih« first hsvin^ I been conditional and the eotiditiori not c.niidied Willi, and the ewapo havinf been negligitil, hikJ not voliiiiiary.— j 'I'homsonr*. Leonard. Kasler,(i Will. IV. 1 Altiirhmnit — Hail being (i.ficcli'd, Um ! Court will not order an attachment obtain. cd against a Sherilf for not brinKJni; in lbs body to siaiul as a .seeurily, w beri' although a trial has been bmf, it has l>een wiiboul the default ef die .Sbirilj; and be swears I tiro application \* made for his own in- I d.iiiiiity.—Ward .Skinner. Trinity, 3 j and .» Will. IV. j I'ounJiiiff.—Klyimiv, n a .Sheriff eiiii. tied lo |ioundiii;r, on a fieri Uu . ,-i against land><, where alter advertiseinein loraalc, the parties compronii.-w' Gales el al. v$. Crooks. .Michs. \ Will, IV. Attaehmriit.—Whito a Hheriff return, cd a writ to die Clerk uf the Crown afler a rule to return it had expire.l, a id on ail atlH.hment bung moved lor not returning it, it wi(« produced by the Clerk of dio Crown but had not been filed, the Court refused to grant the attarbiiient merely for ilii) purpose of compelling the .Sheriff to pay the eosts.—Atidr.ws f*. Uobtrlsoti et al. Michs. 7 Will. IV. I .rl/^ucAwien/. — Where a .Sheriff had I been ruled to return a writ of capias ad j respondendum, and afer the expiration j of the rule returned the writ to the plain. : tiff's Attorney, and afterwards an attach. ment issued ay.nnst the Sheriff, theCourt relieved him on jiyment of costs up to iho iimc of the return although a trial had , been lost, but not tliroii^di his default Rex r». Shorwooil. Micli.^. \ Will. IV. MiJiuy had and recifoei/.— Assumpsit for money had and received may bo maintained against a ,s|n.ri(r fyr money made on .i writ of Fieri Facias, and hia duty is to pay the money over to the par- ty enriiled, and not to return it wiili the writ into the hands of the Clerk of iho Crown — ShuK m al. «w. Leonanl. Uil. 4 Will. IV. Deed.- Taxf».~ln a deelaraljon in case against a Sheriff for not coiivryinr ll> 70 A niOnST (iK CASES UETrnJIlNRt) laniin *(ilp,i»» AhnroniliiKj; Dflilur. — In trcspuHH iiiiiiiiiHt II Shrnd |i,r criziuf. rhi> goodn of the pininlifliiniirr iiii ntiiicliiiiciil l. ciiiiiilanciii uf llie cnMe, and uii ulliduvita lilcd showing that the diiniagea were «xc(K»ivi', granted a mw trial on pay. ment of costs — I'liHirs el hI. i«. Rutluti. (lil. 5 Will. IV. Trnrrr. — Where property had been aeizi d in < .veruiion by a .>^henff, and of. \ terwai'ds abandoned by the direction of the plainlin 'n Attorney, and a menioron. dull) of the suit lining dir^i'liargednriven to the defi iidant, but the Sheriff was after, wards directed to proceed, and sold to the phiiiilitr ill this imlioii, (the property in the iiieun lime having been sold bona fido by the dnlendant to a third party, who had l( ft it in the possession of the de. fendaut in this action.) Held that no property pa.ssed to tho plaintiff by tho Sheriff's sale, as the levy had been aban iloned, and a bona lide sale afterwards made by the defendant against whom the Sheriff had the e-xecntion, — (iould r». While. Ilil. 5 Will. IV. Escapp, — In an oction of case against a Sheriff for not arresting a debtor, and an averment in the |ipiii|{ llw iiU iliiwi' >,irtii, •nil ncUiiii (il rlio Jud(te I, tliR (.'imrt ullliuugb (lion uf lilt' JuJ({a id writ ul cxi'iuiioo ttii, )(l fmiii ilif cir. !«', mill uii ulliduvili till' duiiia){rs Hcro iinw irini on pny. L'r* el hI, ts. Ruilaii. priipcrly had bpcn i\ a Sill riir, mill nf. Iiy till' diri'i'iiun of •y, niid n nirnioran- ilisrliiir(,'i'd(;iven to Sliprifl' wns offer, rrrd, nnd sold to the 1, (thr priipi rty In lircn Hold bona fido I third party, who >sscfsion of the do. )n.) Ifrld that no ho pininiifl" by the i'vy linil boen nbon de snie aflirwurda It ngninst whom tho ution. — (iuuld r«. V. ion of case ngninst »uuii a (li'hlor, and TJaration of tho is. of I'apias ad rcopon- which an oriffinal educed at the trial, eld ininmlerial. — Mil. 5 Will. IV. ng Debtor. — Whcro 3. and C, and being -> leave the country, to B. the debt he !trd his clerk to that departure, made an Ib to 13., without B.'« and before B,'3 bb. goods were seized ittachmcnt issued at lat the sale to B. was aasciit waa receiv- ed, »nd th«l the Hliond', hitviMK wiird the good* Lht lore lurh tiwent, could nut hi ireaifil iiH N ireipawmr — Uarreit r*. Hn. pcljw. Kanler, 5 Will. IV. Trr»imti.— l'rau( the pnriv Irnni whoiii poiweM. ■lun the prop, rty w«^ nikeii by hiiii, at that It wa» riTrived under nn BHi/ Atmmhly.—An atlaehmcnJ wns i,'raiiled iiKHinsl u Mherilf, who waa a iiMiiiberof I'lirl.inient, for not returniiiK a writ pursuant to a rule ofCourt.— Bell IS. Huchannii. Micbs. 1 Vic. L»rapr — An artion for an encapo -hould be brought against the Sherilf, and not agiiinst the liuililfwho arresieil, unleaa the bniliir has been guilty of a rescue- Wilson r». M'Cullngh. .Michs. aVic. •'iate Under iUeculwn A Sheriff can- not in any nuinner become tho purchaser ul properly sold under an execution.— Dob Thomson r#. McKeniie. Michs. a Vic. Cutenant. — Suretien. —In eovcnant against a Sherifl' and his sureties for de. luiilt in the Sheriff in not paying over mo. iiey levied under a writ of I'ieri Facias aguinst lands, thcjudgment on which tho Fieri Facias issued must bo set out in the declaration, but it is not necessary to re. cite a previous writ uf Fieri Facias against goods.— Uidwell f». McLean. Michs. 2 Vic. Jittk til h'rtiirn H'^rit A party who has ruled a Sheriff to return a writ and af. lerwards given an order to stay proceed. ings for a certain lime, cannot after tho expiration of that time, the writ not havini? been returned, proceed by attachment under that rule.— Bergin vs. Hamilton. .Michs. a Vic. Keturn.—An insufficient return is as no return, and the course is to move for an attachment, not to quash the return. Eastwood et al. on. .McKenzie. Hil. 8 Vic. Regina rs. MeLeod. Michs. 3 Vic. Pi>un(lage.~A Sheriff is entitled to poundage only on g. ng to make a levy, not on going h> sr|i also Burwell r*. Tomlinson. Hi!. 2 Vic. Attachment — Venditioni Expontu.^ An attachment may issue against a She. riff for returning " goods on hands" to a writ of venditioni exponas.- Harper •». Powell. Easter, 2 Vic. *^ A DIGEST OF CASES I)ETEBMIMr& Attathment.—Cuitt — A Sli.Tifl'eannol i withhis Pureliot", in an action on the eo. bp attaeliedfor non-payment of tlip costs venant piven by tli.'. sureties nnd the She- rifl' under 8 Will. IV. ch.i), for a default hy the .SlicrifT in liia life time. — Bouitoa »«. Hamilton. Hi', 3 Vic. SIDE LINES. The statule of limitations applies to land." occupied by parties after having run side linos, althougli it appear on a new- survey that the original side lincfi were run erroneously.— Dcnnisoii r». Chew. ef B rule to return a writ under 3 Will. IV c4i. 9, unless there lias tjcen a rule speci. ftlly eaUing on hini co to do. — .M.iroy ii». Uutler. nil. 2 Vic. Doe McUregor vk. Grant. Trinity, 2 and 3 Vic. Shcriff.—Suretiet.—ln a joint action egainst a WherifTand ono of his sureties >ind«r a Will. IV. eh. 9, pleas in alKitcnicnt by the Sheri/Tand the surety, that there is a. separate action pending against each for j '.^y^^ g and 7 Will. IV the same cause, &,c. were held good on demurrer as to tlic surety, and judumcnt f onseqiiently given for both of the defend. • nts. — Com. Hank r». Jarvis cl al. Miehs. 3 Vic. Attachment. — An attachment will not be grantee against a .Sheritrfornot return. SLANDER. Sre ul?o Linnt.. Dainagff. — In an action on the cm* for .'lander, a new trial will not be granted at the instance of the plaintiff on account of the smallncss of the damages. — Afkin» ing a writ, pursuant to a rule to return it, »'*• Tliortiton. Michs. 1 Will. IV'. Proctor iflsued on the same day the writ was re. I vs. Allcti. 'j'rinily, 2 and 3 Vic. turnablc— Kegina m. Hamilton. Easter, | Privihped Communicntinn. — A charge of stealing ofTice monies, made by a clerk in a public ofRce to the head of th« dte» partinent against another clerk, was held not to be a privileged communication, ii» the absence of any proof of the los* of such monies, or of the grounds of the ac- cusation, although the principal, to whom the accusation was made, stated that ha believed the defendant imagined thecharga to be true. — Prentice vs. Hamilton. East. er, 1 Will. IV. f'rime.— An action wil! lie for word* spoken in this Province of a person, im. puting to him the commission^ in a colony su' ject to British criminal law, of a crime SVic. Attachmrnt — Vfit. Ex.— A Pheriffun. J.'r a writ of venditioni exponas has no tight to enter upon the defendant's lands, and sell bis goods there by Piihlic Auction, and a purchaser who enters at tlie same time as the SlierifT is a trespasser us well as the SherifT.— McMartin rs. McPherson Michs. 3 Vic. Escape — .\ SherifT may bring en ac. tion against bail to the limits for the escape of the debtor, before he has been sued or has paid the money for which the debtor was ill execution. — Rultan vc. Wilson, et bI. Michs. 3 Vic. i I punishable by that law.— Mallocli »#. SiZe.-The Court will, after n sale of j Graham. Hil. 2 Will.IV. la.nds umier an execution, prevent anas, signment by the SheritF to the purchaser, where good cause is shown for requiring their interfertnce. — Dank V. C. vs. Miller. Ilil. 3 Vic. Attachment. — It l-^ a good ground to prevent the summary interference of the Couit hy attachment against a SherifT for not paying over money, that the money has been attached in the hands of the par- ty not paying over, tinder the absconding debtors' act.— Powers ts. Scott. Hil. 3 Vic. J.ustiien. — After a ShcrifTs deBth» Ills ^rsonol represeuiaiives cannot be joined Damages. — In an action of slander for accusing the plaintifTof theft^ and a ver- dict for .Cl.'iO, anew trial was refused oti the ground of excessive damages, and al- though it was sworn that tho principaF wiu ness for the plaintiff had since been con- victed and banished for forgery. — Eakin» vs. Evans. Hil. 2 Will. IV. Evidence — Where in ca.se for the slan- der of the plaintifT's steamboat, ft wa» averred in the declaration that certain per- sons were going on a voyage in the steam, boat, and th.-.t th= sjsndrro-iswofos irv'z spoken in the hearing of a particnlar perse» IN THE COURT OF ftUEEN's BBNCB. 19 fc named and others, but no proof wacfjivcn of tbe voyajrc, nor of llir pfrsone who were eo'mg on it, nor of the individuate in whose bearing llio words were slated to hnvt- been spoken, and the jury found fir the plaintiir, the Court heli) tliat the evidence did not support the doclariiiion, and h new trial was granted without costs. — Hamil. Ion vs. Waters. .Micha. 5 Will. IV, Privileged Cjmnunicrttioii. — In case for slander, the defendant may under the general issue shew that the words spoken were used in a privile' thing donu under that act to be brough* within three months, nor is ne entitled to 80 A DIGEST OF CASES DETERMINED roiirc of action under 24 Geo. II. cli. 44, nlilmuj,'li, seinblc, enlillt-d to the protection of tliat act, as to tiic action btin^ brouglit wiiliin six months — McFurlaiic tn. Mc Dougall. Hil. 3 Will. IV. .SCKKTY. See also PKi.Nrii'.vi, &, Siretv.— Siierih . A surety by bond for the due perform, once of the office of a Hank Ayent, in not responsible for losses occurring; alier the nature of the arjency has been chan;,'ed, and tile agent apjjointed a cashier Hank U. C. vs. Covert et al. Trinity, 7 Will. IV. tfUllKKNDKK. A tenant in fee may surrender hi.i es. tale back to the King by act and operation of law, as by accepting a new grant for the same land, or he may surrender by matter of record, but a surrender by mat. ter not of record or a surrender by matter of record foundid on an invalid title is in. sufficient.— Doc McDonell et al. vs. Mc- Dougali. Trinity, 3 and 4 Will. IV. TAXES. See also Ma-ndamus. — Sheriff. Where lands have been sold for the non- payment of taxes, a stranger nuiy redeem under 6 Geo. IV. ch. 7,for the benefit of the owner without his knowledge or consent before the year expires, and in computing the year the day of the sale is to be exciu. ded, and if a certificute of redemption be improperly granted, the Treasurer of the District should bo made the defendant, and the purchaser should not sue the ShorifT for refusing to execute a convey, nnce. — Boulton i;«. Ruttan. Hil. 3 Will IV. In ejectment by the purchaser of lands sold for taxes at Sheriff's sale under 6 Geo. IV. ch. 7, it is necessary for him to prove that the writ to sell was grounded on the Treasurer's return, shewing arrears of taxes for eight years, and that there v.as no sufTicient distress on the lands to levy the amount, andsen)ble, it is also no. cessary to prove that the land had been "deseribed or granted".— Doe Bel! vs. RpHunier. 'I'rinity, 4 Will. IV. Land which has not been described by the Surveyor General is not liable to be •./id lor ia*es, und a party claiming under) a Sheriff's deed, land which has been sold for taxes, must show that there was no sufiicicnt distres.s on the land, although he need not shew that all the necessary formalities have been attended to, such as advertisiiiir, &c. and the deed may bo made by the .Sheriff to the assignee of the highest bidder.— Doe Bell vg. On. Hil. 7 Will. IV. TENDER. A plea of tender is not supported by proof of an offer by the defcmlant to bring money which he does not produce, al. tlioiii/h the plaintiff says that he will not accept the sum mentioned unlens a further sum be paid. — Thomson r«. Hamilton. Easter, 6 Will IV. A plea of tender and refusal and that the defendant was always ready to pay at a particular place, heid sufficient on ge. neral demurrer lb. Hil. 7 Will. IV. TITLE. In covenant for title, the breaches as. signed were, want of seisin in fee, and an eviction by a stranger, alleged in the declaration to be entitled, to which the defendant pleaded a seisin in fee in him. self. Held that on the plaintiff proving an eviction by the stranger, without shew, inghis title, it was incumbent on the de- fendant to give evidence of a seisin in fee in himself.— Vary vs. Muirhead. Easter, 1 Will. IV. Where to a declaration in covenant for title generally, and breach that the defen. dant had no title, the defendant pleaded a seisin in fee, Held that the issue lay on hirn, and that he must shew such seisin by proof of actual possession at some time, as prima facie evidence of his estate in fee, although the plaintiff offered no evidence in support of his Iireach. But the rule is otherwise where the covenant is only again.-i the party's own act Mc. Kinnon is. Burrows. Easter, 3 Will. IV. In nn actiim for brpoch of covenant for good title, no damages can be recovered for improvements or the increased value of the land, iiie purchase money and in. terest forming the measure of damftgeg,- lb. Trinity, 4 & 5 Will. IV. IN THE COfRT OF QUEEn's BENCH. 81 Tha Court will not c(.ini)tl a vendee of Feal property, «|io hns recovered fiorn IiIh venddi- thp nmount of purolmse tmnir) and inleri'81 for a defect in ilio vendor'H title, to stay proceediiij,'s on his jiidgment, until he gives up the pospessioii of the land conveyed. The vendor njust pro. cced hy nclion to recover possr sioii. lb. Hil. 5 Will. IV. TIMDER. A sulc of (rrowing timber is wiiliin the provisions of the Registry ,ict, and where A. by deed sold growing timber to li. and afterwards conveyed the land to C. with. out reservation, and C. registered his deed first. lie ld,that f'.'s deed must pre. vail, and that B. could not maintain tres. paas against him for cutting the limber, al. though C. had notice of fj.'s deed before registering his own. — Ellis vs. Grubb. Michs. 5 Will. IV. TORONTO. The Gaol limitg of the City of Toronto do not include the liberties of the City King VB. Latham. Hil, 7 Will. IV. TRESPASS. See also SnEniFF. In trespass for driving against and kill- ing the plaintiff's horse, the defendant cannot under the general issue, prove that it was an accident and arose from the plaintiff's own negligence, the de. fence should bo specially pleaded Mc. Donald vs. Monk. Hil. 3 Will. IV, A person who tortiausly removes stone from the property of another, and works it into mill stones, acquires no property in it thereby, so as to enable him to main. tain trespass against the owner of the land who has taken possession of the millstones.— Bakoretal. es. Elint. Hil 3 Will. IV. Where in trespass quarc clausum (regit and de bonis asporintis, the defendant makes title in his plcii and gives color, the plaintiff must answer the title alleged or reply specially, he cannot reply generally as to a plea of libcrum tenementum, and to reply to a plea justifying the remf val or goods «H eiiuuiiibtniig the defendant's close, that the defendant was not lawful. ly possessed, or or possession, not eonnecird wiih the person. al conduct of the partus, is bad Thompson vs. Bieakenridge. Easter, 3 Will. IV. Where a diclaration in trespass con. lained two counts — the iuk fur rutting down trees, and tlie other l». McPherson, el at. Triniiy, 5&.G Will. IV. In irespasa for tukiiiff (joods, &,f., if ihry are not spcfillcally art out in ili<^ ilocl.ira. (ion, it will U,. Iiml on f,'(n was i,'rarH('d. Held, tliat without actual entry, lie niiglir Maintain U-cspass against llie intruder, for cutting down titnlitr after such notice St. Leger vs. .Muaalmn. Kasler, li Will. IV. The plea of liborai\i teiiemrntmn to a declaration in trespass ipiare elausuin fro git, and carrying away ihe plainlifl"'s hay •Jjd corn, &c., is bad on demurrer.— Wil- cox M. .Moi. (joinery. .Mielia. 7 Will. IV. If, in trespass agaiM."! several defendants, Ihe plaintilf prove a joint trespass against »ll 9n one cownt, and then atleir.pt, but fail, to prove a trespass against all on ano. iher count, he is siill eiiiiiled lo recover for tlie trespass first proved. — Watson c». Riorden et al. Michs. 7 Will. IV. Where a testator devised his house lo Ilia wife for life, and also left her some ! personal property, and the Hxecuiors, in I her absence, eiit«red Ihe house, for the i purpose o< making an inventory of the pl'operty, and afterwards turned out he;- daughter, and shut the house np. Held on trespass Orought by the wife, that this was sufficient proof under the issue of ex. cess.— Ifonsbprger I's. Iloiisbcrgcr et al, Hil. 7 Will. IV. A master is liable for the act of his firm iwrvant, in impounding cattle, in hia ab. «6nce, the servant acting within the gene. ral scope of his authority SpatTord tt. Hubble. Easter, 7 Will. IV, A defendant, against whose gcjoda a fihflriff hnd n writ of pYoojition, ^whirh wn? afterwards gf! aside for irn-gularity) drove to tlic sherUf'a oflice, and give his dt-puiy a list of his property as seme d, but with- out any actual seizure. Held not suffici. em to support irespasa against ilie then plairiiiir.— Ilervey f,<. Alexander. Hil. 'J Vie. An agrocmcnt lo enirr u|ion and clear land, and iiikc llio wood after it is cut down in payment of the labor, is not for an interest in laiula within the 8lalulc of Fraiiils; and the person clearing the land, may niainliiin trespass against the owner ol the land, for taking away the wood af. ler it is cut down, nliliough he has no pos. session in the laud lo enable him to main- lain trespass ipinre elausuni fregi; Ham- ilton r,«. McDonell. Easier, 'J Vic. In Ircsijass quareelausurii fregit,a house, in one part of which the plainliir's shop was kept, and in llio rest, th-; pliiintitr's [dork and his family resided, alihougli the ! plaiiiiill'ncver re-uled there, was properly described as ihe plainiill's dwclling.house. — fteatly IV. Me.Uasltrs el al. Trinity, H &. 3 Vic. In trespass quare claugijin fregit, a plea justdying the enlry under an attachment against a stranger uiiiler liie ausconiing debior's act, was held bad on siHjcial de. inurrer,asamoiiiiliiig to the general issue. — Green is. Hamilton. Ilil. 3 Vic. Where a horse was stolen from tho plainlili; and bou;^ht by tho defendant at Public .Vuciion, but not in market overt, and the plaintilf afterwards seeing j ihe horse, took possession of it, and the j defendant immediately retook it. Held, ihal the plaintiir had a riyht lo retake if, no properly having passed to the defend, ant by the sale, and that although it was only ill his pos.session for a moment, yet the properly revested in liira, and he could maintain trespass against the defendant for the retaking, and that as the thief was unknown, it was not necessary loshew ii prosccuiion lo conviction. — Rowman r». Yielding et a!. Michs. 3 Vic, TRIAL. See Nev Trial Practice. TRIAL AT BAR. The Court wil! isof grant a trial at bar, merely because the parly apjih ing for it J f{»ve hia iK-puiy »i(i)!( d, but with. Jk'ld iiui Nulfici. HK'iiiinl 'Ik- then Icxaiidcr. Hil. 2 >T upon ftiid clear (1 afi(?r it is cut ! Iiilior, m not fur lin llio .Siatiilc of .•Icnriii^r ilio land, fjainst the owner viiy llio wood ttf. ;li )ic has no pos. ililu him loni.iiii. nil fioyi; — Ham- IT, iJ Vic. :u frrgit,n honar, plniiitiir's shop t, th'! pliiintiir's led, nhhoujrh iho re, was properly I dwelliiig.liouso. et al. Trinity, 3 nn fregif, a plea T an attachment the ausconiin^ d on siH-'cial dc- I! iiencrul issue. I. .3 Vic. it(p|cn froni the ' thi) defendant not ill market terwards seeing I of it, and the took it. Held, iht to retake it, d to the defend, iltliuiigh it wan a momniit, yet m, and he could '. the defendant la the thief was Bsary to shew a , — Rowinan c». ic. Practice. AK. a trial at haf, Tl'lyinj for it IN THE COURT OF QUEEN's DENCB. » a barrieter.— Dio Palmer pt. D.ckson. Trinity, II Geo IV. TROVKR. Bond. — Trov.T may ho maintained ■gainst the ohlifjor of a hond, who has wron.;fLilly tern olfhisPcal, and damni;i s may be recovered to the amount of llic penalty.— Dink U. C. vs. V\ idmcr. IM o Will. IV. II »sc. —Conversion — Wiicrc the dc. fendant was to pay a sum of money for the plain:iir, who gave him a horse in sccuri. ty for the payment, and the defendnni without paying Uu; money used die lion^e. Held that the plaintillcuiild no4 treat suoii use as a convcr-ioii and bring iriiv( r wiUi. out a demand — Foieaier V8 Hpenccr. Uil. 3 WiU./V. RidcM C.inal.-'VT.wT lies against a lock-keeper on the Ridcau Canal for not dehvering np lumber, seized and detained by him undur the provisions of the Ridcau Canal Act, fjr obstructing the navi^-ation on a lender of llic cJKirgos oce:i<.i,uicd l)y »uch seizure, anl ihe removal of the ob- Btruction.— Gjuia vs. Jones. Ilil. 2 Will IV. 83 Darrviget.—Whcte ihe plaintifT agreed to build a house for the defendant, who paid a certain sum in advance, and gave the plaintiff permission to make the brick» of which the house was to be built on his land, and to sell any surplus, and tha plainiifl' nut proceeding with the building, 'lie di fendant seized some bricks which 'he pbiiiitiir had made, and a number • darlieles belonging to the plainiifl'. Held on trover brought by the pluiii'ilf l.ir the value of the brick.s and ilie other arlielcs, lit no damages could be recovered for ihe seizure of the briek;', as under tho i.Tieenifint tliey were the property of iJw delendaii', and the Jury having estimated ilieir value in the damages, a rule wag mtidr ab.<'>liito toroduoo ijio vordipt. Wil. cox VS. IJuriiside. Trinity, 5 and G WilL U. Horse.— Where the defendant received two horses from the plainiifl" to sell at a certain price, and without bis authority or assent sold them at a less price. Held that ho was liable in trover for the differ. once — Priestman ti*. Kcndiick. Hil 3 Will. IV. Property When pcraonal proporiv was taken in execution by a Slierifl', and afterwards abandoned by the direc- tion of the plaintilf's Attorney, and a me. morandutn of the .suit being dischar"ed given to tho defendant, but the .Sheriff \va,= afterwards directed to proi;ced,and sold to the plaintiff in this action, (jlin property in tho mean time having been transferred bona fide by the defendant to a liiird party, who had left it in the possession of the de- fendant io this action.) Held that no pro. perty passed by the Sherifl'-s sale, as the levy had been previously abandoned, and that consequently the plaintiff c-o;i|d ni' maintain trover.— G 5 Will, IV. VS. White. Hi Crown Grant. -Qiitcrc, is the evidence if the iSecretary of the Province, that it appi'ars by an entry in his own hand writ. hi;; m a book kept for such entries, that a Crown grant was delivered to A., and that he iherefire was convinced that it had been delivered to A., siifTicient to chargo A. ill trover with the possession of such t-rown grunt, and if A. obtained such ,'raut without any direction or authority from the grantee, but from the direction of some public ofTiccr to the Secretary to Iclivcr to A. such grants as he should re. piiie, was possession obtained under such irdcr tortious, and did it affjid evidence jf a conversion at that time? — Ilampaon vs. Ujulton. HlI. G Will. iV. n>rsr — Where A. lent a horse to B., in whose posse-s.sion he was injured, and loticc immediately given to A., who re. /used to receive him from an Inn, where he had been left by B., and afterwards made a formal demand of him from B. Held that tho non-delivery in compliance with that demand, tho hor.so not having been at the lime in B.'s possession, was no evidcnceofa conversion.— Wells i-«. Crew. Trinity, G anl 9 Will. IV. Partner. -0.10 pailner cannot bring trover ag,^i.^st anothor lor convert. ng tho partnership property — Smith vs. Book I Trinity, 1 and 2 V^ic. II 84 A DIGEST OF CASES DETEIIMINRD Convrrsion — Demand Whore a Ac. mnnd is ncccNiary in trover to prove a con- vcraion, if it ho verbal, the ntiHwcr must bo posilivp, nrnl whi-rc a verbal demantj wns mndooii llic dcfiiulnni, while dnuns ■t a dielniice from hi!< house, where the properly demanded was, and no answer was relumed. I[eld nocvidenco o( a con. version.— McLeilnn vs. Graham. Kaslcr, 8 Vie. Deed — Trover may he brought for a deed passing a fee simple, and the jury may give the full value of the land as the measure of damages.— Burr vs. Munro. Miclis. 3 Vie. TRUSTIUO. A diselaimrr by nii l'«ppiitnr wbo is tiso a trustee under the will, does nut di. vest Iiini of his estate as trustee Due Boyer vs. Clau,-. Kaster, 3 Will. IV. Doe Berringcr vs. Iliscott. Michs. 3 Vic. A devise to iruatcea to convey {jives them a feo simple in joint tenaiu-y without words of inheritance. — Doe llerringer i;». Hiscott. Miehs. 3 Vie. USE AND OCCUPATION. In an action for use and occupation, an averment, that one A. H. occupied the premises at the special instance and re- quest of the defendant, was held n imply a suflicient allegation of a permission by Iho plaintifflo occupy, on motion in arrest of judgment, after judgment by default.— Moffat vs. M'Crae. Michs. 19 Goo. IV. USURY. Promissory notes were hflJ not to be usurious, which were made payable with interest computed from a time several years prior to their date, it appearing that the debt to secure which they had been given, was due at the period from which Uie interest was to run.— Unles vs. Crooks. Raster, 1 Will. Where A. having purchased land at Sheriff's sale for £82, and not being able at the time to pay for it, applied for a loan of the money toB., who was an Attorney, and had claims in his hands against the person for whose debts the land were sold, lUii B. agreed (o Huvance it, on A.'s re. pnying jei32 ia three days; end A. hav. ing received a deed of the land from the SherifT, conveyed it to B., subject to re- demption on poymcnt of XI 32, ond B. transmitted the bonus on tho loan JC50 to his client as so much received on hia claims. Held to be usury in B iMcDon. ell i\. t. vs. Kirkpalriek. Ilil. \ Will. IV. In an action of ejectment brought by a Sheriff's vendee of lancLs sold on an execution, against a purchaser from the debtor before execution, in which it was contended that the deed to the defendant was usurious. Held that !hc 'lebtor waa a competent witness to prove the usury. —Doe Springsled vs. Hopkins. Trinity 7 Will. IV. VArUANCi.. In an action on an award, thesubmis. aion to arbitration as set out in the declar. ation mentioned three defendants, and the award in reciting that submission no. ticeil only two, but referred to the rule by which the submission was made as an. nrxed to the award, in which rule tho three dcfendanla were named. Held that the variance between the submission set out ill the declaration and that recited in the award was immaterial, as the sub. mission itself agreed with the declaration. —Hall vs. Mathisoii. Hi|. 10 Geo. IV. In case for a malicious prosecution, tho declaration stated the trial before the Hon. Levius P. Sherwood and A. McDonell, assigned by His Majesty's Letters Patent, to them and others nanu d therein direct, cd, and the record in evidence, was of a trial before the Hon. Levius P. Sherwood, and others, his fellow Justices, assigned by letters patent, directed to him and others, or any two of them, of whom ho was to bo one. Held no variance. Pron. tice vs. Hamilton. Trinity, 1 & 2 Will IV. In trespass for mesne profits of close ol hiisband and wife, and proof of judgment recovered in ejectment on the demise of the wife alone. Held a fatal variance Ashton and wife vs. Keesar. Michs. 7 Will. IV. VENDOR AND PURCHASER. The Court will not compel a vendee, who boa recovered from bis vendor tb« IN THE COURT OP QUEEN's BENCH. •s •mount of purchaae money and interest for H defect in tho vendor's title, to giay proceedings on his judKmonl until lie pves up poBF<\ssion of the land convej-od. Tho vendiir must proceed tiy ncliori lo tscovcr hlfl posiTflsion Mi:Kinnon vs.' Burrows. Hi!. 5 Will. IV. VKRDICT. If a plnintilTut tho tri.il of his cause »baiidons all the counts in his deolurntion but one, and olilains a verdict on iliat one, tho defendant is not cnliili d lo a verdict on the other counts, and if nuch a verdict he rendered the Court will on np. phcalioM disciiar^'c it, l-viiig tho plaintitl to dispose of Iho other counts at hi.i own risk.— Gates vs. Crooks. Trinity, U Cico. IV. The affidaviia of .Turymcn cannot he received to she. v that there was a mistake in their verdict anless tho mistake also appear on 'he Judge's notes IVIilloch M. Morris. Trinity, 1 &, 2 Vic. Wagck. A, betted B. £73 to X50 on a horac race, and dcpo^iicd tho money in the hands of C. iho horses did not Uvhnf, to either A. or B., nor was there any other match or stake /or which they wcro to run, A. lost and gave C. notice not to pay over the money, but C. notwihiland. ing paid it to B. Hold that A. mi^ht re- cover tho amount from C. as money had andreceived.lhe wager hein;; illegal un. dor 13 Geo. H. ch. 10. — Sheldon m. Law. Hil. 3 Will. IV. WARRANT. The amount claimed for debt and costs in a bailahio action, must bo endorsed on the baililV's warrant a» well as on the writ. ~ Steele vs. Lameux. Easter, C Will. IV. A replication de injuria to a juatifica. tion under a warrant, is good.— Blair vs. Bruce. Trinity, 1 & 2 Vic. An informally in tho warrant of the bailiff who made the arrest, in a bailable ^ action, is not a euiricient ground to set writ itself ia not produced Hussoy et.l Link. Eaater, 3 Vic. WASTE. An action on iho case for waste may bs brought under C Kdw. I. ch. 5, by him in remainder or reversion for life or years, and whirn land was devised for life with a reservation of ihc oak timber thereon, il was held that a power to dispose of other dcsiripiions (if limber was not thereby im- plied, and that the tenant for life was guil- ly of waale in dispositiir of such other lim- her — Taylor vs. Taylor. Easier, 1 Will. IV. WATERCOURSE. Where the plainiiti;-, who had built mills on a sircam, by indenture, granted a licence to llie defendant to make a race, way over ihcir lands, f,jr a mill to be built by ll ..■ (lelendani lurtber down ihe stream, pr ividcd that the water was not thrown back thereby, nor any injury nor damage occasioned lo ihe plainlill',' noils, and af- ter the d. fendant'a mill was buill, by an nccumulation of ieo on tho by-wash, the water wa.i forced back on iho plaintiffs' milk HflJ, that (ho plainiiffs might main- tain an aciioii for such injury, and that case, and not covenant on iIf- indeniuro, was the proper form of remedy.— East, wood el al. vs. lUlliwtll. IM. .'j \\i]|, fV. Where aibitral&rs, lo whom di-^putcs, I arising from the overflowing of three acres of the plaintiff's lands by water thrown back from the dcfendani's mill, were re- fened, awarded damagi 9 lo the plaintiff for the injury, and that the defendant's should have a fall of nino feet, and no more, f >r their mill-dam, provided that tho water on the plainliff'j land was not rais- ed thereby J and Iho defendunls raised their dam to nine feel.and overflowed five acres more of the plainlifl 's la:id. Held, ihat the award did not prevent his recove- ry of eompc.isalion for such firihet injury, and that he was entitled to damages ft tho loss of the additional fivn acres. — Gas. ler vs. Ransom et al. Trinity, 7 Will. IV. WAY. In (respnss quarc elausum fregir, a plea of right of way under a deed naist shew the parties lo tho deed, and a private right o; way Caunut be claimed hy prescription in a less period thar, twenty years. Smith HI. Smith. Trinity, 3 & 4 Will. IV. A DIGEST OF CASES DETEBMINEP, &C. WELLAND CANAL. Th« Wcliand Canal Cumpany are rn- titled to tolls for ttiat part of tho canal commonly called the Cliippowa Cut. — Welland Canal Company vt. Warren •t al. m. 1 WiU. IV. Wiu,. — See DrvisB. WITNESS. Partner. — Where a bill of cxclifngc wa« endorsed by a firm, one of the part- ners of whieh resided out of tho Province, and the endorsee sued the partners resid. ing here, the other partner was held not to bo a competent witne.is, altliongh re. leased, to prove that ilie bill was paid. Ferric es.Stark weather. Eastcr.l Will. IV. Bond. — All oblijiur In u joint and scve. ral bond, may be a witness for his co. obligor.— Bank U. C. vs. Widraer. llil. 2 Will. IV. Promisinry Note. — A maker of a joint %nd several promissory note, is not a com. petent witness for a co-makcr.— Dudley •«, Morse. IIil. 3 Will. IV. Attachment. — An attachment for not obeying a subpccna was refused against a witness, who resided twcnty.five miles from the Assize to\i-n, and had been sub- pcenacd only the day before tho cause was tried. — Fairclaim dcm Thompson vs. Putnam. Michs. G M ill. IV. Commission. — Where ono party to a auit issues a commission to examine wit. Bosses, the other party has a right to call for and make use of it at tho trial.— Gor. don vs. Fuller. Trinity, 6 and 7 Will. IV. Partner — In an action for goods sold emtj delivered, a partner of the plaintifl" not joined is a competent witness for the defendant to prove payment Wilson vf. Stevens. Miclw. 7 Will. IV. Release.— \ joint contractor with tb» defendant not joined in the notion, may,b« a witness for the plaintilT, and a release (though unnecessary) given by the plain, tiff to him ininicdiatcly before the trial to enable him to give testimony, will not operate as a discharge of the defendant, unless pleaded puis darrein continuance. — Boyco vs. Parke el al. Easter, 7 WiU. IV. Usury — In an ejectment brought by a Sheriff'^ vendee of lands sold on an eiecu. lion, against a purchaser from thr debtor before execution, in which it wa>^ < ontcnd- ed that the deed to the defrrulant was usurious. Held, that the debior was a competent witness to prove ihe usury. Doe Springated vs. Hopkins. Trinity 7 Will. IV. Security for Costs.— \ witness who has given security for costs in the cause, may be sworn on paying the amount of his security into Court at the trial. Buf. faloBanktJs. Truscottctal. Michs. 2 Vic. Interest — If a witness be called for iha plaintiff who is incompetent from interest, and he be afterwards calU d for the defend, ant, tho incompetency is cured. — Hall t>». Shannon. Easter, 2 Vic. WORK AND LABOi;. A person who tortiously removes etone from another's land, and works it into mill.stoncs, acquires no property in it thereby, so as to enable him to maintain trespass against the owner of the land, who has taken possession of the mill, stones.— Baker et al. e». Fluit. Hil. 3 Will. IV, ^ THE em;d. Ih ont.— Wilson v#. IV. tractor with (h« c action, may.ba and a rclcoM en by tlio plain, cfore the trial to imony, will not " the defendant, lin continuance. Easter, 7 Will. It broui^ht by • >ld on an cxccu. from ihc debtor it wa<^ ontcnd- defniuianl was debior was a vc ihc usury.— ins. Trinity, 7 . witness who 3 in the cause, the amount of he trial. — Buf. . Michs.a Vic. c called for tha t from interest, for the defend, ircd — Hall t>«. .Bon. removes stonf works it into iropcrly in it It to maintaiq ■ of the land, 1 of the mill. Fluit. Hil. 3 I\DKX or SUBJ . ;t§. •A» PAGE. Abatement Absconding Debtor 3 Account .Stated r Action ^ Admmisirator ' or Affidavit ' It Agent Alien Allegiance, (Oath of) Amendment Appeal Apprentice Arbitration Army Arrest 3 I Contract C — (Continued.) rAGE. 19 6C I Contribution on Conviction 2,j Corporation ijo Costs Covenant CriniinnI Information Cririiiiial I,aw Crown Orant no 22 23 23 23 Currency ' ,,. D. Assault and Biiltery jq Assembly, (House of) Assumpsit Attainder Attachment Attorney Award 11 11 11 11 12 13 B. Bail Bail Bond Bargain and Sale " Baron and Feme Battery Billiard Tables Bill of Exchange Bond _ /" Bond (Limit) ^ Boundary Boundary, (Commissioners)....... J; Bubble Acta ,., Bye Law ' 13 11 15 15 15 15 15 15 IGj 17 Damages 04 Debt '7.. .' Denlaralioii Deed !!..,...^ Dciiiuner Devastavit Devise Devisee Disclaimer Distress District Court Dower 34 24 24 35 35 35 35 26 36 36 26 E. 37 37 31 Canada Company t. Capias jy Capias ad Satisfaciendum Carrier Case Certiorari Cognovit Commission Commr.r. r.„jnts 'J..'."^^...'.Z Consideration Easement Ejectment Elegit ................'.'" Eijuily of Ucdemption 31 Escajjo Estoppel Evidence Execution Executor Exhibit 31 31 31 35 35 36 F. 17 18 18 18 19 19 19 False Imprisonment gg False Return Feme Coverle Fences Ferry Fieri Facias Fishery Forcible Entry Foreign .Judgment 33 Foreign Law ^^ Frauds, (Statuteof) gj, Fraudulent Assignment,... 39 12 37 37 37 37 37 38 38 (3i IMDF.X OF SUBJECTS. «. PAOE. .... 39 Gaol Gaol l^imits 39 Gouds Hull! 31) GrnnI 39 Gunraiitce 39 Guariliun 40 H. Heii 40 Highway 40 Horse 41 Husband and Wife 41 I. Illegal Conlrnct 41 ImprisDnrneiit 4I Indemnity Act 41 Infant 41 Information 42 Insolvent Debtor 49 Inspection of Books 43 Insurance Company 43 Interlocutory Judgment 43 Intrusion 43 Irregularity 43 Joint Stock Comf. -.»>■■. . 43 Joint Tenancy ,,,...., 43 Judge , 43 Judgment 43 Jury 44 Justices 44 K. King. 44 L,. Lands 45 Lease 45 Legacy 46 Legislative Councillor 46 Libel 46 Licence of Occupation 47 Lien il ^ I 47 Limitations, (statute of) 47 Limits 47 HI. Magistrate 48 Malicious Arrest 4 48 Malicious Prosecution 48 Mandamus 4b / in. — ( Continued.) » . a e. Married Woman 49 Memorial 49 Mesne rtofiis 49 Mill 49 Money Had and Receded 49 Money paid 49 Mortgage 50 If. New Assignment 61 Now Trial 51 Non-pros 53 Non.suit 53 O. Ovcrliolding Tenant 53 1». Purliamcnl jM Particulars 53 Partition , 53 Partnership 53 Patent 54 Payment 54 Pediprcr 54 Penal action 54 Penal Statute 55 Physician 55 Pleading 55 Postage 59 Post Master 59 Poundage 59 Practice 59 Principal and Agent 66 Principal and Surety 57 Prisoner 67 Privilege 67 Process 67 Profert 68 Promissory Note 68 Quarter Sessions 71 R. Record 71 Registry Act 71 Release 72 Religious Society 72 Rent 73 Replevin 73 Replevin Bond 73 Requests, (Court of) 73 Rideau Canal 73 INDEX OF 8UBJECT8. .. 49 ... 49 ... 49 ...49 .. 49 ... 49 ... 50 ... fll .. 61 .. 53 .. 53 .. 53 :.8 .. 53 .. 53 .. 54 .. 54 ... 54 .. 54 .. 55 .. 55 .. 55 .. 59 .. 59 .. 59 .. 59 .. 66 .. 67 .. 67 .. 67 .. 67 .. 68 .. 68 .. 71 .. 71 .. 71 .. 72 .. 72 .. 73 .. 7a .. 73 .. 73 .. 73 *'• PAr.K. SaiiifBciion — J 8educiion. 73 Setoff. j^ Sheriff. 71 Side Line ^g Slandfr ^g Spirituoua Liquori 79 Stakeholder 79 Slock 79 Stock Note* -9 Stone 79 Street Surveyor 79 Purely 80 Surrender ^q T. T«xe« so Tender gQ Title Z';;;i; eo Timber gj Toronto g. TrespMa g| Trial 00 T,—(C.nil 16 Bank ('. ('. m. Bctlninn liiilililr Acts 17 Bank of .Montreal r*. Belliiine Bubble Art? 17 Bank V. C. Inrc Corporation 20 Bank of Montreal m. Bdhunc Corporation 20 BankU.C. r». Covert ct. «l Cost." 21 Bank (Biiflalo) r». Truscott cl. a! Koreiirn Law 38 Bank I'. C. In re Iii«peetion of Book.s 43 Bank I'. C. r». Reibune el. al Pleading 57 Bank of Montreal r*. Heiliune TrHctice • 63 Bank U. C. r#. Covert et. nl Practice 63 BankU.C. m. Bellmiie et. al I'ractiee C3 Bank (Commercial) vs. Allan et. al I'ractico 64 BankU.C. vs. Crosby I'roinis.sory Note 69 Bank (Commercial) rs. Jarvia et. al .^Iierift" 78 Bank U.C. r«. .Miller Shcrifl' 78 Bank U. C. m. Covcrtet.nl Surely 80 BankU.C. ts. Widmer Trover 83 BankU.C. rs. Widmer Witness 86 Bank (BufTalo) r». Truscott et. al Wilne.«s 86 Barnhart rs. Justices Home District .Mandamus 49 Barhain ri». Shaw I'raciico 59 Barney vs. .Simpson Practice 66 Barney vs. Simpson Promissory Note 71 Barrett vs. Rapelje Slicrilt' 77 Barrett vs. Rapelje Trespass 81 Battei^by vs. Haycock Attorney 13 Battersby vs. Haj'cock Kvidence 35 Beach vs. Odell Commission 19 42 54, 56 58 61 65 70 82 55 iiO 77 Beard vs. Orr Insolvent Debtor., Beals vs. Sheldon et. al Partnership Seals ct. al. vs. Field.s ct. al Pleading Beaton vs. Mackenzie Pleading Bcasly vs. Darling Practice Beatty vs. MeMaslers et. al Practice Beals vs. Sheldonct.nl Promissory Note.. Beatty vs. MciMasters et. al Trespass Bell rs. .Stewart Pleading Bell rs. Stewart ,,,,,,,....,,,, Practice Belt vs. Buchanan Sheriff 92 I.VDEX B, — {Continued.) OK CASES. Absconding Debtor . . Attorney . I'racllcc ■Slicriir. • i^atigfaciion . SctofT. Setoff. Shcriir. _ Pleading rractice Hail "^^'!"!^'^ nail Upririn ri. Pindar Kerry ts. Adams Hfrgin r». Whitehead KiTBiii vs. Hamilton .!....., Bethune rs. lirown Betlmne ra. Drown Bickersia/r r*. Merchanl. ....... ....'..'.'.'.' liidwell r». McLean Diffcraft r». Clarke Uigelow VI. Sprapifc Billings ct. al. ,». Hurry ".' . Billiig.set.al. r». Louck.s ...".... Billings et al. r«. Jfi.id „ ij- 1 ractitr.. Bs,one.. et.ux rs. Radonlmrs. j^,, Blair »». Druce „, , Blair «,. Bruce.. '^ J'''''"''' Bonnistiei .,. McMa^te^:::::: ZzT ;•;; Botsford ts. SU'^'nn i^^ecutur and Administrator.. „ , , Arrest Bonlton t». Miirphy et. al ^ Boulton M. iMurphy et. al n ,",",' Bo«iK>„ «. Hanlli.on..;: ::;;::::;;;• s;:;i^'''"'« '"''"""• Boulton j'«. Riittan r,. ' I, iajccs Bowman t*. Yielding ^,^^^^ Bowman vs. Yielding et. al jf^^^p Bowman r». Yielding el. al ] j. Boyd et. al. vs. Durand Boyd et. al. vs. Durand B 'yce vs. Parke et. al ij)ass Arbitration Pleading r> J, . VVilnesg Bradbury vs. Lowrv. ai ,. r, J. •' Abscondi nor Debtor Bradbury vs. Oliver. J-'tntor Bradbury vs. IIo!to*n Brndl i: I's. Ilodgkins p„,„,f- „ „ i'cms Cover e. i Brewster t». Davy ., - n,„. ., •* Abatement. Ureakenridge ts. Kins * , u, , ., ^ Amendment Breakcnridge vs. Ki„g jj^^.^^ Brewer vs. Bacon.. n r, „ rractice UrewBter vs. Davy ,, r, „ ' Prnctice., Breeie vs. Baldwin Brown vs. Bethune Brown r». Finlay, et. al ■ L Brockville Board of Police. Inr: Ek;; oVsof Mamhu'nusV. t^ Brown r». Whitehead j,^, ^ '*" BuffaloBank ,-,. Truscott et.'al. '.'!!.' BiirorFrM ^ Burrill r*. Mills , ' ^•'"='""'ff<= 15 T) „ Arbitration Burns vs. Grier r. ., r, ^ Bail Burns vs. Donelly q^., Burford »«. Oliver. r. Ferry PiOE. 4 ■ 13 ■ GO . 77 • . 73 . 74 . 74 . 77 57 03 14 14 64 a? 58 85 36 9 46 53 78 80 10 41 82 8 57 86 4 15 15 37 3 6 87 64 ,, . C5 Iromissory Note ^q Capias ud .Satisfaciendum . . 18 '.ibel. Bill c. Billc tngo., ange.. Burwell vs. Hamilton . Burnside ts. Wilcox T\f, Libel . L'us .'Vrrcst. 6 14 14 37 46 43 INOEX OF CASES. TAGE. .... 4 12 CO .... 77 - . 73 .... 74 .... 74 .... 77 .... 57 ... 03 .... 14 ... 14 ... C4 .. 87 .. 58 ... 85 .. 36 .. 9 .. 46 . 53 .. 78 .. 80 .. 10 . 41 . 83 • 8 . 57 . 86 4 15 15 37 3 6 27 64 G5 70 18 46 49 08 IS 14 14 37 46 43 B. — (Continuetl.) OiurnsiJc m. W Burgess M. Fm inuiR . -Nfw Trial.., I'armprsliip., Burns i». Cirirrct. al i Burn.s rs. Domlly ct. al picad ifaumg.. >n«. M TAC.t. S3 54 58 58 58 Burnside rs. W.lcox ricndinj? ^ Burnlmn, t». Chout jvi,,,,,,,,, „„j surrly 67 Burwcll r.. Kd.son Prinnpal ami .Sur.iy . "67 Burnr,. Straight ,.,„,„„ Burwcll „. Tond,,,..,.,-. si.cnir. .' 77 Burr i;», Miinro t Trover ^4 P'is.ced „. srhoificid (.,„,„„, i,„,„„„,,;„;;;; g, Busteed .,. .'.cholficdd ,,.,,,„ ,f , ho Peace ■■' 44 B.aerr.. Thotnn,, I„Holvo„t De Buller r». RichardHuii j,^^^ fbtor., ctice. 43 62 C. Callaghan «*. Strohrid^o Amrtidmcnt g Ca,nph..|l ,.,. j,epl.„„. -Wt.dtncn..... 5 tan.pMl ... I-cnon Bed to the I.itnUs.:,';:;; 17 CampbeU vs. .McPhersot, Post Master ■"■ il Camphell t». .Madden PraL-.w-e Cameron vs. Fergusson Practice Campbell „. Bruce Practice.'..!.'.' Carlisle ts. Niagara Harbor and Dock Co. Practice easier vs. Rai,Horn et. al Arb.trati'on.'.' easier r,. Ranso.n el. al Watercourse Cavan r,. Wal.sh ,^„|^„ Cliisholin rs. Ward Arrest. 59 59 62 6-t 64 8 85 5 9 20 4 39 Chisholm rs. ."^inipson f^.^j^ Church „. Barnhart ;;.'.'.;;;.'; Atnendrnent . Church vs. Barnhart p,^,,^^^ Clark et. al. vs. Mallery Absconding Dehto;'.;'.'.'.'. 4 C ark .,. A,hfield Absconding Debtor, Clark ct.al. rs. Bonnycastle Grant Cliner*. Macdonald.; Action Cline r, Macdonald ;;;; Reques.VC^rt' i^f ).";";;; "■ 73 Loit ts. nine. f< ■ J c^ ■ ,. ■ . ^ *• Lapias ad batislaciendum... 17 C°''"'»-Cole ,)„,|,„ Conner M. Thotnson Partnership... 5J Cooper M. Canada Company Corporction '" gO Cooper r». Canada Company Process ej ':'^^ ''• ^'"''^ sheriir.'.','.';,;'.';:;;;; ,I Copping „. McDonell Certiorari '. ,» Cormackus. Herein i> 1 *= ' Replevin 7<» Cornell f». Quick u.p,,,,^ JJ Counterr,. .loncs p,,„ji„g ^^ Cowper M. Fairman et. al Pleading. . 5s Coaenst,,. Ritchie Arrest « Crawford D». Cobbledike ' Costs.. 31 M IMDEX OK CASKS. C — (Cantinucd.) page. Crawford c*. Stciinctt Malicioim ArrcBi 48 Crooks cl. al. r*. Law Acroiint SIbIkI 5 CrookH vs. Cliifliolm Arbilralion 7 Crooki vf. House I'raciict- (J2 Crooks B». Davis ct. ul Traciirp C4 Cryslcr r». Crrighlon Kasiriiiciit 27 Cryslcr t». Tliomson I'rDccss gg Culver B». McDon.ll Attacliinent n f II Daily t)». Stevenson rioadins 59 Dalton c*. Lake Pnimissory \oli< 69 Darcus »•». Hall Arrest iii Davis r». Grand River Navli,'ution Co. Curporaiiun oq Davis t». Davis C.isih o-i Davis r». Davis I^f'cnlor and Administrator 36 Davis P*. Davis Prnctice 63 Dayr*. Spadord Hcnd jg Dclongi-s. McDoncJI Ass.inlt and Battery H Dennison c.». Sandford Arbitration 7 Denham vs. Talbot Insolvent Debtor 42 Denliam. In re vk. City of Toronto... . :\lnndamu.« 49 Denham r». Talbot I'risoner 57 Dennison r». Clie\\' Side Lines 73 Dickeon et. nl. r». .'\Iarclo H.xecutor and Administrator 35 Dickson v». Crooks Postngc 59 Dixon r». Jarvi.s Limitation.'", (Statute of) 47 Dixon D». Paul ct. al Promissory Note 70 Dobie vs. McFarlane Practice 61 Doe Adkins vs. Atkinson Deed 25 Doc Auldjo j)». Hollister D''vise 26 Doe Armour t!». McEv\-cn Ejcciniont 28 Doe Armstrong rs. Roo Ejectment 29 Doe Auldjo r«. Holliatcr Executor and Administrator 36 Doe Auldjo r,«. Hollistcr ludgmeni 44 Doe 13radt i-s. Hodgkins Baron andFemc 15 Doe Baker cat. Gould Crown Grant 23 Doe BerriuEter vs. Hiacott Devise 25 Doe Buller vs. Stevcn.s Devise 25 Doe Berringer vs. Hiscott Disclaimer 26 Doe Boycr vs. Cln-is Disclaimer 26 Doe Bell vs. Roo Ejectment 28 Due Boyer vs. Claus Ejectment 28 Doe Bouler IS. Frascr Ejectment 29 Doe Brown vs. Eraser Ejcclinent 29 Doe Bell rs. V'roman Estoppel 32 Doe Berringer vs. Hiscott FIxecutor and Administrator 35 Doe Rradt rs. Iloilgkiiis,..,, Feme Coverfp, 37 INDEX Oi- CASEF. PAGE. 48 5 7 C2 64 87 68 11 r.9 6!) 10 20 2t> 36 63 16 11 7 43 49 67 78 35 59 47 70 61 25 26 28 29 36 44 15 23 25 25 26 26 28 28 29 29 32 35 37 Liniii Lr :i«(> li-f DooUf'Irr Orr Doc HuMiicll r.». I.ii.k Vkw lirnvii i„. l-rn»ir Duo DoyiT M. Clau-i II, I>oo BirriiiKir tn.lhM\.:t IWt :h.;,. Doe n.!| t,, U.v.iinur Taxos.!.' DoeJJiil n. Orr T.ix, . Doe Ikmiiijcr rt. llifcdti 'riustcc. Doe DcTringoTM. IIi.«o.i[i Trii.«ri Doc li.nrr r*. Claii-J Doe Cinniia Co. ra. JJo.- D>)o r». Clii-!i(jlm Doe Clark rt. nl. r.- Mi y i. . •,, Doe Crawford m. Cul.!,!, J]k>'... D.>c Connor r». C. ll.i r Do,. Cr,.,-n r,,. Inev.v, Kjcctnunt . Doc Creenr,. Fn,,,,,,,,, l-jrctinerX . Doe Connor r*. Ci/llyi r Doc Crnwfonl vs. CohhlaUlc. Doe Court .-...Toi.p.rN.,! Kk„ fac, Doe C. lurnt . DoeD.,b,or*.Van £3 25 S6 isvrx or CASKS. D. — (Continwd) PAGE. Pix' LriiTiinf r*. Kavmond Commiwiion 1!) Ihif I.ahhcr rn. F.ilfur FliTiinriit.. V) iKii- I Dm l.ukt r,». Piivii Prao'.ice ('.-J Poe Morion 11 1». Fini,ison B.iundnrv 17 Dne ^tiwining r*. Fcrtfusson I'mhii (irmit 21 Pne Mllor f». Uiioii Pnrrf ^4 Doe i:». Mitchincr Dnr d Ci Pur .M'lrphj r». Miilliolland Kjpriiniiit Ul Di>nell ct. nl. vs. McUniiBall. [jeciincnt 'JH Pop M«rcli r«. Knipey Cjrcriirrrit aS Uoe Mann r». Krith Kjprtnif nt , 30 Doe Mflvin r». (lilchnst Kjeciiiirnt , ^'J ]>oe Milbiirn r». .Sibhnlii forctinctit , i.",l Doe McNnh et. ul. r.». Srikcr I^jrttmcnt 30 Po' Mtfarlaiie r». Utx* i;jritiii'-iil 3') D"C Malloth rt. Hoc Kjerinicni 30 I>ue .Mtr^ninlJ rt. si. m. Hue K|pcinii'i;l HI Doe Myra tn. Ttleclvicr Dji'-inicnt .'II Doe Moak t«. Ennpry , Oiinrdiitn 40 p><» Monk tt. I'mpi'V I!''ir XI Doo MclntoaSi r». MoDuni!! Jtiwn l>o« Smith rt. Shutoret.al Doe Smith rt. Myers Doe .Sliiiirret. al. rt. Carlcr Doe Samson m. ParWci- Doe Shannun rt. Roe Doe Shiitcr el. al. r». McLean Doe Shutpret. al. r». Caricr Doe Spaflord rt. Brown et. al Doe Springstcd r«. Hopkins Doe iSpringsii-d vs. JIlJpkill.^ Doe Taylor t$. Patirson Doe Thompson it. Putnam Doe Tiirany vs. McEwcn Doe Tnistcps Methodist Episcojial ^ Church r». Jitll ) Doc Thomson rt. Mackenzie Doe Wilson ti. Wessclls Doe Wilcox m. Thome Doe Walker t?. Roo Doe Wohster rt. Fitzgerald Doe Webster vs. I'ilzjjerald Doe Webster ts. I'itzgerald Doe West rt. Howard Doe West rt. Howard Doe Wilkes t'». Jones Doe Wimburn rs. Kent Doe West va. Howard Doe Young rs. Hinnian Doe Young vt. Smith Donclly vt. Gibson Douglas r», Powell Douglas vt. Powell Douglas vt. Powell Douglua M. Murchison . r>rf merit . J.niids,, ,, . .>; .rii'a^'c., . .".rg'.stry .it • Derd . Jil'USi^ . !)i\i»o . .Ijet imi Ml . Cjeclni 'lit , KjlCltlKIlt , K|fc!iii>';)t . I".jccliiii:iit . KjiM.iinent , . Kjiclriiiri! , KxeculioM . Rxecniorand Administrator . (Jrant , .Joint Tenancy.. . .Mortgage , . -MortgHge , , .Mortgage , .Mortgage i^heriir , , Usury ,, , Witne.-is Devise , Hjectment Kstoppel .,, Religious Society Shcriir Deed Ejectment r.jeclmcnt Eijuity of Redemption Execution Fieri Facias, Intrusion King Lands , Lease , Limitation, (Statute of) .... Practice Practice,, , Costs Arresf Hail Bond Bond Bond to the Limits B7 I'.; .K. at 4j 7i at ••.«..*«. 3i Ut 30 30 31 31 01 3.-. 3i; 30 43 M 50 30 :>i 7.$ 66 SS 2-* 77 31 11 35 37 43 43 45 47 C3 e,? 2-1 9 13 16 17 INDEX OF CASES. a.— (Continued.) nongall r#. MrLcan Practii-p Doylo r». liorRiii Ki.ri Ku.-i.m '".. D'lyle m. IVu^r Siw TrmI *.". Doyln r#. Hrryin Kl.i nirf Driiin «,•. Smuh Scw TrmI '....'.!!!! Druinrnofid r«. Hrndlry Kvnlinrr Ducat r#. (Jrcen Vrl.iirnij.i Diirat t.,. SwcP„,-yet. al M„n.y JIa.l and Kccmed'. Diirat r#. Swcpiiiy rt. al rraciirr Dudlry r#. Mow rrniniiM.ory iiulf .[. IJiidlry r». Mirno Wiiiiim I)iii,'(,'aii r». D.rriik Hml l)ii>,'t,"iii vs. I!.)rl,ind I'loadiiip Diij,'i,'an r». iJorland rroninsury N.jir Dunn f«. McUougall Maliciuui. ArrcM ..*,' E. Enkins rt. Rvans Plandrr L'nslwood ct. nl. ts. Mackenzie Alianidtr Eastwood et. al. vt. Mnckcnzio .Sh.rifl Eastwood et. al. r». Woalcy l'M,„i^H(iry nolo., Enntwood ct. al. j.». iKHiwell Wnlc rrcmrop .... Edii.on v». ltiii;«dono rrnclior Elliott tj. Hall Army...'.'.*.'.'.'.'.*. Ellcrbcck t». Sherwood Process Ellis i-.t. Grubb J{.;;i3iry Act.'.'.'.*. Ellis t'». Urwl)b Tiinlicr..,. Elmore t.f. Colman Cost:. Elwood vs. Monk InM.lvrnt Debtor., Evans f». Shaw rUadiiig Everarahiia vt. Lconnrd I'nl!. Wilkinson XMUMdin.til Ford r#. Lii.Mier Al.Hc,md,i.« |),b.,.r.!! Forsyth r.. Ilnll Ari,„r Fordet.il. r*. SiialFord Ait..riuy .*.'"* Fomyih r». Hall If-ir.... '.'.',". Forsyth V,. Hall ;.', . Land's" !!.'.'.','.!'.'.".'.'" F.-rsyih ,-,. Hall J.i-nimtion, (.^,„„„e o'f',' Forsyth rl. 111. b». French .'\r.iri,,'a-e Forrestel i-. Graham rraciice Forsyih p#. Harlwell Trot r«s.'.'.'.'. .*."'•" " Forrester »#. t^pencer Trover..., Fowke vs. Foiher«ill I 'Ir a d m'J. '.'.'.".'.".'.*!! .'." FraBcr vs. nuulloii Atturncv.. Friser r.. Boullon Attornev 6 4 5 13 40 IS 47 51 61 67 H3 57 13 12 *!"'""• ''I'"' Goods tioM ,;: FrecUnd I-,. Jones Kvidenco Frecland r,. Jones „„„j ,^ „„, i^,,,.,^ ;;;;; Fricsnian »». Donelly el. al I'luadini,' Fricaman e«. Douelly ci. si Trespass/.'..'!!!!!!!'.!'.!!." 35 17 57 82 G. Galbraith t,. Walker Arhitration g Gallagher vs. Strobridf;e ij,„„i ,„ ,i„, r,i„,i,.M !.!!!!!! 16 Gamble et. al. r». .larvis Aliscondin- Debtor '" 4 Gamhleet.al vs. liussell ,.;,„cutnm ." 35 Gamble ct.al. vs. Jurvis Ful.-e Return 37 Gardner D«. Stoddard CoMn gO Gardiner .,. Gardiner i:xecu't'or'an'd'!v'd'.!Jnil!rn't'or!!!.'! 35 Gardmer vs. Gardiner Land.» Gates ct.al. vs. Crooks Sheriir Gales vs. Crooks Gates vs. Crooks Gibson vs. Cubitt Gilkison In re /y,(, Gilbert et. al. i-j. Sleeper . I'sury . . . , Verdict. ., Damacos , irnry , Evidence... 45 75 84 85 at 31 « if i f 'wo INDKX (If CASr.S. tit — (_('(iittitiuril.) Olynn r». Diinl.>|i (••i[pia-. n.l Siiiisfnciniduiii. (•iMiilirliapii ««, ChilviT Cj^h (J.iodiilliMli'iM. Mynclir r«. H.ikir,... Cnpwn < Jraiil (loodlillc ilciii. (;:irl.i.iii Oi)ril.m r». Kullcr lAidriicr (JordDii M. Kull( r Kvjdcnii- fiordon m. F'cjllir rn-Diiir (Ji)rd«)ii r». Fiiliir \Viliir<'<> <«ould r*. Itirmiiiuliniii Il;iil llurid Gourlny r/t. M, I,, iii I'niclir. Hould r*. Ji.'ips Kidniu Ciiiml (niiild r». W'luii' Sfuriir fJoiild r*. June Triivtr CSoiild m. Willie 'I'mur (Jrnrit m. Mcliilimli (.'cijfiiuvil Oroyq.t. p*. Driirick IViial Acliun , OraCH r Mciuliiii I'ru.nr'p , (itay r-r. Simili Sri..ir , Grniit r«. V.l-iuii Sli.ri/I (ircRory r». I'liinagnii Ciriiurari GrpRory r#. Flaiiaijaii iJisiricl Court Grreii m. Hniiiilini I'lriuliiii; (Jrorn r*. Ilniiiillnii ., Mihiic I'mliin (Jrccn r«. Huniiltoii TrcHpasH OriUiiha M. Willaiid Canal Co \.>w Trial Oruvfs tn. Clarke et.ul I'ruiiiiiMory Nolo H. Hnll r*. Mnllicson Arbitration Hnll vs. Fcrgussoii Arliilrntioii Hall »3. Shannon Allorncy Hull ra. Armour I'lirtitrn Judunicnt.... Hall i-f. Ciilcinnn Ilcir-ii! Hnll m. liidwcll ., Inraiit ...,, Hall vn. Buck Joint Slock Company. Hnll vs. Shannon Now Trial Hall ii». Slmnnon Noii-Siiit Hnll r». Buck Parlnershi|) Hnll r». Ruttan Pliadinii Hall r». Griswold Practice , . Hall rs. Hunter Praciiro Hnll VK. Coloman Promissory Nolo Hnll r». Molhcson \iirianco Hall t)». Shannon WitiieJia Hamilton rs. Wilson Arbitration Hnm r*. Hnm Attacbmcnt Hamilton m. McDonald Attorney Ham v.». Hnm = = .. = = =..».. .Cognovit PAfJf 14 Ui 30 IS .11 3.-. 07 15 im 73 7fi H3 lit 55 R'J 74 76 \H iir, 49 53 70 7 8 13 38 41 41 43 53 53 54 59 64 65 68 84 86 7 11 13 19 I.NMX OF (ASKS. 101 rAfir." H !M Ui 30 li) 31 3S (17 1.1 fid 7S 7fi f<3 t43 l!i 55 51) 74 76 18 ua 59 49 88 53 70 7 8 13 38 41 41 43 53 53 54 59 64 65 68 84 86 7 11 13 19 lUrMi.m ri. .Mr|»„ti.!l | >nui|. (.-utiiie <.f !. Hampli.iii r«. I.yonp M.irlnicr Hamili.m r«. I,viiii« IJit'iKiry An llatniltDii Cf. Wiitrr^ Sl.inrlrr , Hmnili.iii m. Mil) .ni 11 'rnspu-v llmnimiii M. It.iiili.iri /I'r.iVi r ll«rri.»on r«. I, 1VM11,'«I.II1 I! .iM. I.'iirrii rM, llnwkini (>-;.- ilsrvy r«. K;iv ( ,hIw Hurt r... \Vi|„,n l.uiiiiaii.Mi). iSmmio of),, HarrinjfiDM r». Sinrw Srw Trlul Ilnrprr r». P.iwi II Sliiritl' Hnrvry r*. Alrxninlir 'I'r(«|ii\« nii.ilinK:» r». ('Imiiipion < I. iil Aluiii iiii ril Hnstinin r». Clinnipion ("..sih Unplitiffs r». Chnrnpidir I'rnrluo Hawriit. nl. m. Madden it. nl I'l.adini' Hpnilirr r». Wiiljupr Ali-cundiiiL' Di Ninr Hi'ljiwill m. Kailwodd rt, !d Ni-w 'rriiil ,,.. Hplliwcll r». Knsiwoip.l ti. nl I'lcndiiii; Henry r». Simpson Assnidt and llHitcrv TrmI Ilendorson r». Walhiri' ; Henderson r.». J.inrs rraciicp llcnryrl.nl. r». MiI1.>ni II rrumisMory Nulc Hrrsliey, Adnni r». Wiirrcii lioiid Hcrshry r». Warrrn rii'iidmir llincks r». f'rcpoks [.rui-lmivt. Cminrillor.,.. Ifi.ldfn rt. IMcCnrlliy Cunimi'n Cnnnts Holmca r». .'^pmcrr .Mornyl'iiid Hnlliiitpr r». Rarnhnrt I'rnriirp ,,,. Holt t». Jarvis .'^Iirriir. Hooker ct.nl. vn. McMilliin .Monty Had niid H.ccivcd Hoovcrel.nl. rit. Zaviiz Hrplrvin liond Honsburisr m. Fritz Dower HonBbergcr m, Honsbcrijer et. al Lejracy Honsbergcr vi. Hon.^licrirtr Trespass Howo t>». Newman I'lendinir HiilT i)». McLean et.nl Trac'iice Hiiffill B*. McCarthy ct. nl Bail Hugill vs. Driscoll Co.sts Hiigle p». Huglo Scduclion Hall rn. Alway Arbiiralion Husscy f,t. Link Arrest Husscy r». Link Warrant Huyrk r*. McDonald Covenant Huyck !■*. McDonald ^forifago Hyatt r*. Ani,'pr Indemnity An Hydee», Uarnhart Insolvent Debtor lACk. . .19 . .M . 'i . 79 . HiJ . H3 . 16 . '.II . 9i , 47 , 5.} . 77 . m 3 . U-i ('16 , 59 4 .S3 Sd 11 53 66 71 16 57 46 19 M 65 74 49 73 27 46 f<2 55 63 14 20 74 7 10 P5 23 50 41 42 102 INDKI or CASES. rrosi l!-iil Xiw Tri iiii; I. Inprahnm r». Ciinnin^'liam A Ives r», ({dliinaon Ivrs r,« Jfilrhoork ivca rs. Iliiclicurk pj^.j^^j J. Jiirvi^r... Waslil.urn Al,„rnry JpfTrry rs. Lnwrpiico Cmtv Johnson r», Crew j^^ .(otmSon r». Diiriind I'rantic' Joiif'si-A. Unrncs f, Jonps ct. al. m, Wiiin Jonosrl. nt. M.O'Siillivan c^^,^ Jones, <|. t. r.». Chasr /,, |,( Jonrs. q. t. r,. Cha... " ,; ^,„i.rnni<''. Jones r». Clasloril i,,^,;,. „ r,, ,, , iiistircs of ihf! Peace Jones, q. (. m. Chase. lee.. 'irnovit . f-'osts ,, .. Kingston Marine Railway Coinpanv *xm PI. ^11:... * ^ iimp.sit. Cosl.s Aiiornev .. >'». Phillip.s ..^"."'!.''.''. ( Corporation. Costs King rs. Such. Kinff r.?. Keo^h » i Kin^ !■;?. Orr ,| Kinp rg. Latham j, King rs. Claris Kinjr r,?. Diirm.. er.. oronio.. rive I,nw. PAGE. 9 14 51 55 13 21 47 59 19 21 22 24 44 44 'i nnl .Action -j 8 61 11 2G Judscr... Judge Arbaraiton K. Kaiintz (.... Cameron Practice Kent r.«. .Sunnier . ,,„ , ,. , , , Atlnchnient Kendri'k r.*. Lee. ,, . Distress .. Kelchum r». Powell »«,, ,. , Attorney ,,, Ketehiini et. al. r». Brady l^„„^^ '"^ Ketchum j)». Crvsler f . ' I (JStS Ketchutnr«. Powell d ,, , I avnient Ketchum et. al.r... Hamilton I'ractice Ketchum CI. al. r*. Keeler Priicliee. Ketchum r*. Powell p, ,„ ■•••••••■ ,..„ ' roinissory Note Kilnornc r.«. Forester ^\,^.,, Kilborn rx. Wallace Kintf ri>. Such 16 22 54 65 66 69 11 21 13 20 21 43 ii^'liecs of the Peace 44 ilMllt.S .. rica.linj? ,,. Practice., ^""^"■'- ''''^•"«'' PrLson, Kinf» ra. I.alhani -p, Kirkpatrick vs. Askew Kirkpatrick i-.?. Askew i ■ ' ""•^iS'Ktw '"Slices ol the Peace 4. Koylc fs. \Vilco.v p.,|- ^* 47 58 65 67 81 17 Lane M. Mulholland Y^nc^n Lanew. Melville .' ^^^^^ g^jj"; 14 37 39 Mc TAGE. 9 . 14 . 51 , 55 12 . 21 . 47 5!) 19 21 22 24 44 44 54 8 61 11 26 12 16 22 54 65 66 69 11 21 13 20 SI 43 44 47 58 65 67 81 17 44 14 37 39 I\Di;X OF CASKS. ^'•—(('unlinKrd,^ hnnc r.,. McDoncll IVnctire.. LaniiriL'ati vs. Calliil.er rMCfs«. Ijnpoiiuv in. .Sictinpit 103 PAGE. 64 m .Miilicioiis rrowciiiion 48 -acroix, In re \t„„i , . Alandamus in l^ncroi.v, In rr. i> . ,, , ,^ ,,. Ki'MiieMt.", '( ourt ol ) 73 licarh rrc'iMissorv Xuic. . . 70 >'•!. r,. Sfrv,.„.s.,„ ,j,^,„, ' /.(•nrh r.«. Sirvonsoii Praclir... I-crniinL' i-t. al, rs. ll.j. 16 62 '-"■"".I" roun(lai,'c c,n Lcrmin-cl. al r>,. iraycmmn, Sluriir J"""*" "• ^^'i"'^ S„i„,unu7l';,„no„'':! 79 ..•mc.,ur,err,.S,„„h Hon,l .0 ,1,. L,„„,,.. j, I.tmcsiirmr r». Siiiilli Sh.Tifl'.. ' 7- J.cnnnrd ri.Glcndinninp All. Leonard vs. Alerritt. ''"•icy 12 Ilonii lollie I/iinit8.... ig Leonard r.. MoRride li.md lu tl,.. Limit.. 17 Lronardr.,. IWIinir New Trial r,^ LcunanI r,s. . Merrill Janice Lesslie rs. Leahy ,j,„„, y......... " Lrwlip r.». Leahy ProC.n "...!!,..".'.... Lewis r». McDonald Ijajl Lewis rs. .larvis i^^>'i''ncc.....l....Z..Z.. Lewis rit. .larvis Slierift' J^inley r«. Checscmnn jjaii Linloot r.«. O'Neill (;,;>,„ Lindsiy i«. AIcKarlane, Lviilencc Lindsay rs. Mc-rarlane Mesne I'rofiw ........7.. ~l~) I>oeknian r«. Ntssc Dnwcr 07 Lockhart r». Uixon Indemnity Act ^.'...77" 41 L.idoriv!. Healhcote Cognovit j., Lodor r.,. IlL^alhcote I'nsoner ! ^7 ^''"•'"«'. '"'«" Ailoniey '.7.7, Lount vn. Dcmena rraclire. Loucks rn. Farrard SherilF, Lvman et. al. vs. Vandecar Insolvent Debtor Lyman D«. Cotter Practice 59 16 68 14 34 77 13 22 32 13 62 76 42 62 McBrido ct. al. ,-,,. Parnell Executor and Admini.strator.. i.IcHndc ct. al. ,-,,. I'arncll Frauds, (Statute of ) M'Cague IS. Meighan Arrest M'Canady m. Foster Attornev M'Carthy^.Low Kxeeulion . M'Carthy o. Low j..,„, ,,.,^.,„ M'Canady vs. Foster i'raelice.... M'Colliini r,«. Church v, »• ^ ' rromissorv ,.Notc McDonald pt. al. r.». Aiiim Arrest iMcDonuld rs. .Monk .'.' Evidence McDonald .■*. Monk Trespass 7!!7;' 11 36 39 9 12 35 37 60 69 10 33 81 101 IN HEX OF CASES. in. — (Continued.) tagz. M'-Donrll r.i. Rutton Rnil J4 i\Ir|)nni II ii.nl. m. Lnwry rnmii.inory Note 09 |\|r|)(in(ll (]. t. rif. Kirkpairick I'siiry 84 .McDniiKnll rir. Vuunfc ricadinK 55 M'-KMrrry i«. Fioldwin Army g .McKwrn r*. SiDiiihiirno Kirri Facias 37 Alil'iirl.-iiir m. MclhiUKuU Sirrpl Siirvoyor 80 Mi-<;ilji>>. ^iinll Cmts gj McCill rt. nl. t«. licll K..xfTiiior nnd Ailirriiiisfrator.. . 3fi iMcGuirc r*. Piingle Ijund lo the Limits 17 Ml liilosli Fri TO r.i. McKrnzic Atturnry 1,1 Mclfityrr IS. Siilliirlaiidit. al Cripins ad Sati-sfncirndum 18 IMcKrnzio r«. Iiiis«<-ll Absondinc Dclilor 4 M<-Ki'nzii' rt. nl. vit. McNal) I)aj| 14 iMrKt'iiziu <,t. nl. rn. McDcan (Joods Sold 39 I\f(Kpn/.ie it. al. rn. Mtliean (iuaranloe 40 ■McKay is. LojUliart Carrier Ig .MiKinnoii ra. liiirrows Covenant McKinnnn r*. Hiirrow.s Dnnm(;c.s .McKinnon r«. JoIiii.'>ijii Practice Mc Kin MOM (•«. .Idlmson Practice McKinnon 1:1. liiirrows Title .McKinnon i-.i. linrrows Vendor and Purchaoer McKniuht rs. .Scott Abatement „ .McLautihlin is. Wisnirr Arrest Mcl.i'llan II. {Jralinm Trover .Mcl.eod rs. Triia.x Devise McLeod rs. Trnn.v Infant Mclicod ri.Jaekson Plendinj? ,. Mcl.eod rs. Tniax Regi.siry Act McMartin r,». iSpafford Attorney iMc.Martin rs. Traveller F.xeeutor and Administrator, McMartin r». Powell, el. al Jury „ .McMartin rs. .McKinnon Practice McMartin rs. .Mcl'licrson Sherifl". J\ri'.Millnn rs. Ferciisson Costs .McMillan rs. Kairticid Mew Trial 52 .McMillan rs. Kcrpiisson Practice 65 iNIcMurray rs. Orr Costs 20 AIcNab rs. liidwcll Assembly, (Ifoiise of) 11 McNab rs. INIcl'arlane Covenant „ 23 .Mc\ab rs. Magraih Slander 79 McNeil r». McNeil Practice 6ft McMculr*. McKwen Partnership 54 JMcPhedran rs. l,n,>-hcr Foreipn Judgment 38 McPhedran rs. I.uf'lier Pleading 50 McPlicraon et. al. ex. Mosicr Fjail 14 McPliersoii tl. al. rs. Hamilton Kscnpe 31 33 34 SI 62 80 85 3 10 84 35 42 58 72 12 30 44 63 78 22 rJi. INDEX OK CASES, lOo 14 69 84 55 9 37 80 91 36 17 13 18 4 14 39 40 18 33 34 61 62 80 85 3 10 84 35 42 58 72 12 30 44 63 78 32 52 65 20 11 23 79 66 54 38 56 14 31 rAi.F.. aiider 7h Hr, OT. — {Continued.) Mcl'herHon pt. al. r». llnniillun Nonsuit... 5| McPlitTHoii ft. al. M. llaiiiiUoii fheriir. 77 Masuire M.Poat Dislr.ss y^ Mahoripy t)». Zwick C'ont.s -^i Maillaiid r». Si'curd I'ayinPiil -,l Maltland r: Hfcord Praciici! f-,() Mallocli ti. .Morris Atlacliin.nl \i MaloncM. Handy In.,o|v,nt 1), l,i..r .(-J Malonc r,. ]Ia„dy IiLsolvcnl I)uhl.,r 40 Mallocl. r,. NurloM l>rom,...ory Not* 70 Mallochrj. (iraliaiii s Malloch »». Morris Verdict Marry M. HiitliT Atla.liiucnt j-j Marcy M. Butle.- ri|,„,(r " 7^ Massoii ct. al. r». McQueen Judso 4;) Maslin r«. Garroii Praclico (Jj Meighan and Meighan e». Brown Hail ]:i Meinhan r». Reynolds I,iniils 47 Merdonr*. Morgan Attorney i;) Merwin el. al. r». Gales Lease .k; Mcrwin et. al. rs. Gates Promissory Note 70 Miller r». Palmer et. al Iligliwiiy i] Mill8t)». Monger Justices ot the Pence M MillerM. Munro Pleading fiS Miller r». Wallace, ct. al Proees.s M Miller t!». Munro Setoff -1 Mitchell r». Tliomp.son Forcible entry ,T8 Mittlebergerct.al. M.Clarke Arrest ](, Mittleberger rs. Ry KnJeau Canal .!...!.... 7,1 Mittleberger r». Whitehead ct. al Practice (; j Moflat <;t. al. r«. Koddy Fi.- , -, 'loiit-i. Abscondmg Debtor . r. Mowat M. Switzcr et. al Cognovit,,. ,„ Mowat f*. Swiizeret al d 1 , . ,, . , , "^iret.ai Principal and . 'Surety.. kt Muirhead r*. .McDougall et. al New Trial.... „ Mullens r». Arn!«'ron" it j- V ^ "=•••■■■•"•" Absconding Debtor 4 10* J INDEX OF CASES. iTI. — (Continued.) PACE. Mulgrave r,. lVu>«le Fr.u.K (Statute of ) m MuMror..K,ng ,^„^^,„,^. Munson r*. Ifiiiiiilion K-c,ip<. Muiisijii rs. Iliiiiiilton K«-a|)<' MuiiHon r*. llaiMilloii I'lcadini; Munsoii i:». lIiiMiillori I'iciiclint; 12 31 31 58 Mumoyr«.Horon Z^.'vT^icvZ. 2 Myers »* Howard et. al TrcJimss 81 W. Nassau r», n'Roillv n M , "'iijy rromis.oory \o(p -i Neil.Hon a. ul. r*. AIcDonrll KxhiLits N.ison vt. al. r». McDonHi l-vi.kmJ'. o, N-'wcasile DiHtrict, In r.. Slwrid- Miuidamus. Niaifura IJisirict Curl, In rr Judac of... .'\>iarli,M.iii Ninfjara District Conrt, In re Jud.'o of. .16 ■18 'Vriiorari ^^ 2G 28 .5 65 Niagara District Court, In re Jml^ro of... District Court Nicholsondem. .Spafford r». Roe Kjctn.pnt Niclioi.oon drni. Spairord r*. Rue Affi.iavit ..... Nicliol r*. McK.lvoy I'rnciiro ^'"""^r.-Voxl Forri.-n Judgment gg Norton r». Latlmn. Promissory Note 71 O. O'Connor r». Anon Arrp.^t ,(, Oliver r.v. .Stephens ct. al Ne« Trial r. O'Neil r.«. I'errin nn <• i- . will of hxchanffe.. . is O'Neil r.v. IJarnhart Cost.s "i, Ostroin r,v. O'Connor I'Iradin ~" Ostromt's. O'Connor 'in.g irespuss., 5(i 81 Parker m. Dutcher (Juarantce. Parent r«. Mc.Malion Practice Patton m. Williams Costs.. Pellon vx. Administrator of Wells .Sherilf. Ponn ct. al. rs. Ruttan x^^y 'frial. Penniman vn. Wince Praiiii.' Perkins M. Connolly 40 ti3 ao 77 5.3 C3 „ , ■•• ("iipin^ ad .Satisfaciendum 18 Perkms I!,*. O'Coniiolly Prisoner (- 9') li! f Perrin el. al. M.Carson Costs Plielan i'.i. Plielan Dower. Phclan m. Plielan Infant Phelps rs. McKenzie Parliament... Plielan r«. Plielan Process. Pliillips vx. Odell Evidence ... Phillips I'i. Smith Practice .... Pliillips M. Re.lpaih Hid,a„ Can'al S7 41 53 67 31 60 73 rNDKX OF CASES. 107 PA'.E. .. 38 .. 12 .. 31 .. 31 .. M . M .. 64 . 81 . 71 . 36 . 34 . 48 II . 18 2C 28 5 65 38 71 10 52 15 22 56 81 40 63 20 77 53 63 18 67 22 27 41 53 67 31 60 73 1*. — (Continii-d) Phillip, r». 0,1,.|1 >,|,,„,,,^ ^^ Pl..mb r.. M.llor Aimcl.nM.Mt .... Poppl.^w,!! d..,,,. c,.pro„| r>. Abl.ott... . lorciiiirm Poppl.w..|l (km. Ciipr.ol r«, Koo J„Jy,.. Polls m. l;,iylo c^.j,,"^ Powern pt. al. rn. Uuiiaii Sh. nil.' .'.'. ...'.".' Powers r«. Sen f^iwTiir.".', .'.''.'....,'.''.'.. ] Pri'Nticor*. Hamillon DikIcmic Pri-nticc r». Hnmiltim Kvrd.ncT Prenticcm. Ilniinltuii Kviilcncp Prentice ri..Hi.niilton Mi.lu-i.ms I'rostoun.m 48 Prenlicf r.». Hamillon liicurd .. Prentice r«. Haiiiilloti Sluiuler Prcniiccr*. ilannltoii Viiriaiice Pricstman m. Kcndritk 'I'rovcr I'roctw ts. Allen .Slandir r.vi.i;. II '-'!» ■1.1 21 «. Kcnnv Criminal Law ' 03 Rex i)». .Justices of Homo District Estoppel " o., Rexr*. Theale. . ,.,ij,.,„,^. ; - RexM. McHcavry et, ul i.^ciblo Entry " 3a »': 108 INnKX OF CASES. R. — (Contmued.) page. KoxM. Alli'ii cl.ul Ifiirliway 40 Rex t». Justici's Home Ui.flrifl Hi(,'[iwiiy 40 V.iX i». SiiiKlcrnor. Iliyliwnv 40 \Ux r^.Jii'iiiciH .if Ncwciisllc JiiHticci of the Peace 44 Kex r». KkIiI LitiulH 47 Ilex r.«. Jusiiccs lI Huiliurst Mamlaiiius 49 Ilex r». Tlieulc .\,.w 'j'ri.,| jj Kpx r*. Moliil.jsli iv,„a| Statme 55 Kex r.». JiiHiiciH Ilunie District I'rnclice 60 Hex rit. l- 77 3 32 6.1 65 15 27 79 13 13 32 19 66 4 26 65 33 38 56 61 11 25 10 11 52 68 6 57 68 72 32 39 rxar.- .12 35 40 R. — {I'imlininJ.) Riifiiflosr*. li.ikif Kviilrnrr KiiBcli-» r». Il.ikie KxiriilNr and Ailminifllrslor Rinj^li-s m. licikif Heir KiiBirle.i rj. Dnkie Liniitnll.iiii", (Statule of) .17 Riig,'lrsr». n.ikir rica.luii; '. .<16 RiiCCirs r». IlnkiP Sli.ritr. 74 RwsspII m. Mill.r rrnciice Rfi Riiiinn r». Wilson oi. nl Kschih; Rill tan r/». AHhford I'rocf ss Riiltnn r». Wilsmi cl. al Slicritl" Ryan ct. al. rs. LiMiiard rracticu .•52 67 78 62 S. .''anison r». Yniirr Promissory Notr 69 Sanderson r». Cumniinsrs Arrost 10 Sanderson f». Caimroii Insolvrnl Dilitor 43 Sawyer r.«. McDonrll Cosls aa 68 70 Scott pt. al. r.«. Ilciririiiui Process Scutt et.nl. i«. Douglass Promissory .Vote Scott M. Fer(,nisson Keqiiesis, (Court of) 73 Scott p». Rooke Re.;. lists, (Court of) 73 Sowell r.». Tliompson Capias ad Satisf.icieuduin 18 .Sewell m. Thompson Execution 35 Shaver r.v. .Scott Arbiiraiioii 8 .Shaver M. Corry Practice 66 Shaw r». Turlon Arhitraiion 7 Shaw rn. .Maiheson J.iniitalions, (Statute of ) 47 Shaw r». .Matheson Promisiiory Note 69 Sheldon r». IIamilt(>n Arrest 9 Sheldon r«. Hamilton Cosl.s 22 Sheldon r,». Law Wafjer 85 Sherwood r». lioiilion Attorney 13 ^herwood r». Camphell Set OIF 74 Sheriff Newcastle District, in re Sheritf 74 Shipninn r&. nirmingham lury Short r*. Lewis Assault and [lattery Shore r«. Biirrill ijnjj Shore r*. Shore et. nl Pleadins.' Shiitcr et. al. r*. Leonard Money Had and Received ... .Shuter et. nl. rit. Leonard Slier ill' •Simpson m. .Mnthison Process Skinner m. Nevin Slander Small r». McKenzie Libel Small vs. McKenzie Practice Smart et. al. r,«. Brown Kxecutor and Admiiii-strator.. Smart tw. Stuart Lease Smart et. nl. m. Brown .Money Had and Received 49 Smith m. Lawrence , Arrest 9 Smith rs. .Morton Bail 14 44 10 14 56 49 75 68 79 46 60 36 45 HI '^1 rxr, K, 18 ' *" '^f'KX OF TASKS. ^•— — {('iilitiii'itil.) Sniill. M. WliiliMt; p,,^^.^,^ District Conn oc Siiiiiii i-.<, .(,irvi.< 1. hwnpc on ^ I'lirliicrsliip 54 •'^"""' "••-'"""' ricmliny « f^.Mi.l. ,-.. .(,„..U.„ ,,„,,.,,„ ■^'"'""■•'- '^'-"'l' IVucr., Siriiih IV, .Iii,ls,,i 67 , ., I'roini.ssDry Nulc -n •"""""••'• "-'I' Trov.r,.; ;;.; " Siiiitlirv. Siiiilli \\-||^, ■*■" Super r,i. .Mirch. I)iifii!ii,'e3 h3 85 34 26 52 61 31 34 37 48 56 Snp.Trv. lir.nvn ,1. al I)i.slres.« S.ipcr r.v. Miirtli Xrw Trial S.prrrv. Draprrn. al IVactice .. .".'.".'." Spair.n) i:i. Hiii'lianaii (•„„;, Spalfird rv. l!ii.lHiiiaii FOvulrncc '.." Spafford rv. IIiiM,!,. ronrc.H.. Spnfr.nl ,•». It,„hanan Malirious Arrest SpafT.ird rx. Slicrwo.Kl I'lradiiip S|m(r,r„„,, (i^ant St. l-riror ,■«. Maiialian Trespass Siaiitoii i-s. AiKlnwH |_j|,^,j **'"""•■' '•■•••• lioyiioMs Practice *"""■■' ""'I''" ."." Praciico.' S.el.bi„s,...,)-(;ra,lye..al lt,.„.l t„ ,l,e Limit, 17 ^, . ,., , Ailmrnt.on g Steel,... Lan.eiix Arrest „ Strel cs'. Laiiieiix ;Va Stevens r,?. Cmvaii et, al SiiiiHim r.i. Sciillert Siiiisoii I-.S-. .Seullerl et. al Stratford rn. Sherwood Stratford ,.. Slnrwood ':Z Ke,,„es.s, (Court of) 73 "^"•"•"■■'•"'""i"-'" Mortgage Street m. Canicrun arrant gi; . Reqiieati', (Court of ) 73 Majiistra te ^g New Trial 53 Costs 21 Street r.v. Cameron [ Practice 'roniis.iory Note. Arre.ut Sirowltridfjo vs. Davis. Strowbridger,. Davis '. Attorney Stuart, one &c. In re ,„„,„^,;. T. Talbot "• ^I''n«"fr"ll New Trial rannahill r.v. Moryin ^^e.^t Taylor ,-s. Taylor PraoticJ " " 51 66 70 10 13 13 53 9 64 lltiKX ijt lASF.S. ... IH .. JG .. 32 .. 54 .. 56 .. 65 .. 67 .. 70 . H3 .. 85 . 34 .. 36 . 53 . 61 . 31 . 34 . 37 . 48 . 56 , 63 . 76 83 . 13 34 83 46 62 65 17 65 8 9 85 73 48 52 31 73 51 66 70 10 13 13 52 9 64 111 rACE. 85 36 4.1 T. — (Cuiiliniitd.) TBvlor !•». Taylor Wn.-ir Te»| r,. (-larMon .'.'. Hiovk Sou- . ..'. 7",' Thow r*. Adanu. Promiwory No.c ■.',■ 7I I hompHon r.. .March pt. M Damage. 24 Thonip-on r». Marrh ot. bI Disircsd TlioinpHon m. Mar.h ct.nl l.cue. Thompson r,. Uroakcnndge Pleading ".'.'. r.^ 1 hon>p»on M, .'Soweil Prac.ice.. . g., Thompson .,. .Sloan Promissory Note. ... 70 Thompson r,. Hrcnkenridgc Trcgpn»« . j,, Thotnsun V,. Leonard Capia« ad .Satmfanendum'.'.'. " ..'. 17 Thomaonr,. Leonard False Imprisonment 36 Thomson rj. Leonard ShcrilF Thomson rt. Hamilton Tend«r Tift ct. nl. M. Wallace cl.al .ludge Tiffany M. Hullcn Practice....... Tottcn r*. Fletcher Absconding Debtor Truscott et.al. „. IJillings Bill of tJxchange Truscott ct. nl. .,. WaW. et. al Insolvent Debtor 40 Truscott et.al.M.Goldie et.al Practice c'^ Truscott ct. Hi. „. Lagourge Promissory Note. 70 TruaxM. Christy Pleading..,. Trnax M.Christy Practice.. Tnlly vs. Glass Certiorari.. Turner.,,. Alway Arbitration. . Turner M. Alway pi^^ding ., <.) 80 43 64 5 15 ."•..1 60 18 8 57 V. IJnger M.Crosby New A.^signntcnt „ UngerM.Crosby p,,,,;^^ •••■■■ ^J V. VanKgmond v,. Jones Arbitration . 7 Vanderlip tis. Mills n ,„ . ,. ,, ,, , . 'i'xi'idary Commissioners 17 Vandeburgh m. Vanalstine Covenant qi Va,y,.,.Muirhead Covenant.....'.';:;: ^ VaryM. Muirhead Evidence... . 33 VaryM. .Muirhead New Trial. r., VaryM. Muirhead -pitlc Vincent v». McLean '..■.:'.'; Judgmem'.'.'; Vmcent Bs. McLean Practice 80 43 59 W. Waddle M. M'Cabe Consideration jg Waddle r,. M'Cabe Stock Note .... Walton M.Hayward Arrest. Walton M. Hayward : Cognovit Wallace r«. Masson Contract Waiince «», Musson ):;vidence.. 15 79 9 19 20 34 Hit INDKX (IP lASHS. r-- \V»lk.TM.(J,)iirf Kxori.tornn.lA,lini.ii«lrBtor . 3G Wnlkrr M. Hoiilion VtmuU, (Wt.iiiii.. of ; 3' '^' ^'"'^'''"'' P"-'"" I miiy bo lind n.i o ninlicr uf r,jiir»i.- ii|i.' ''"^ "">•■"<.■'. clirU ul tlir |ia|nni, or li'iiiliii^r ,1, III,,, C.iiri, roHidi-i wiihdiii the | ''•■rk of i|ic riili k ,„ KmiUnd, f,rc to nc MiNirii I w Ik rr tlir^ qciiuii m hniii^rht, g|| (/i*<'fi by ili«< Cltrk ul ihu Crown nnd V'l'"-, noticcN, ilonmiid-, nnd oih. r pnpcm or I '"■ '"" Utpmics in Ihw I'roviiici., in ifio |dcii.|ini,'i, to l)o Horvcd on sncli Attornry, I*'"'"' iimnntr, ond the imniQ nisy imuo oliall he dunrncd ri'Kiilnr liy bciiitr pui nji in ''i''"" in icrin or vooalion. ili.> Crown (liriic, Ml 111.. I),«incc wlurr. in such action is Imnipht, unless .«nrh At. VII. N lorneyhnvc known ngini in ilii- Homo l>is'ricl, in which cusr, Hcrvicp on Iho A«cnl shall ha required. III. As goon ni niiiy bo after filing any in. quisiiion taken under Huth'>rily ol the ,Stn. tnir, (mssed in Iho 5Hh v< ir of Geo. III., The Clerk of the Crown shall cause on I , exlraot thcrejrom containing the name o( | '"''* •'""''■'fl' '« whom any execution, or the person found to bo nn ulien, nnd dr. ■'"'°'-'''"' '" '''<> nature of an execution, lifieindtd. VIII. less than eight days inclusive tihnll intervene between the Teste and return of ull mesne process hereafter to be sued out in oiiy personal action, to bo hence- forth instituted in this Court. I.\. scribing the land found to have been ir hi.s po8.sesHion or to which he had n title sub. jcct to forfeiture, in order that any person having claim mny Irnverse the said Inf|ui. sition, and he shall exptsc such cxtrnct in hi» ofllc, (r,,in the dale tlierrof to the end of the > ear (roin the dale of the Inqui- si lion. IV. Some person competent to the duties of ihe office of the clerk oC'lie Crown nnd Plens, is to attend there lu vacation from 9 o'clock in the morning until three o'clock ill the afternoon, and in Term lime from 9 till 3 nnd fro . ix till 8 in Iho cvenincr —See Rule 12. V. Neither the clerk of the Crown and shall be directed, shall include in the re. turn of such execution or process, the ninouut of Ins (ees levied by virtue there. of, and shall specify in the margin Iho particular items of the same. X. In nil causes now pending, or hereafter to be brought in this Court, Defendants shall plead within eight days after Com- mon bail anl '!'cla' tion elinll have been filed and a pica lieiuandtd. - I. Every Attorney not resident in the Home District shall enter in Alphabetical order, in a book to be kept for that jiiir- pose by the Clerk oftlie Crown, his name and place of abode, and also in an oppo- site column Ihe nomo of some practising „, ,., , - """ =">^ >-""'"■■' "le uume or some practising Pleas, nor any olhisdeputies are to file any Attorney, in the City of Toronto, as his " . ' .vir, declaration, plea, roll, record, or | Agent, who may be served with notices. ;( in any rnuxr, purl, iir III ilic y wriiii 1111(1 pru. iliite 7, ICaMlrr ^•nuUoli prurlicr if (•■jurHi; n|iiiii iilr liiir, ur nrr lii»ij.iine, wilh llmi ,il hn n4{..nl .ik Ih I .rr inennun. •d, fixin« lip ihr nntin, Kumnionii, or other pnp.r m thr Iru'M) i.irice, nhall be dlcnud >;,iod S( TMcr. TRI.MTV TKIIM, I UKO. IV. Xll. ti i« Oril-rril thai rr.iiii and iiti. r the tlid of Ihin Trriii, the hoi,". i„ |„. „bi.ervrd III ihe fniwii ( iilicv duriiij; 'IVrm »htill !..■ from I iKhi Ml ihe iiiorniii;; u> . I.vin, fn.iii ; twelve to ihrrr, and from nix in the tve. \ niii« to nyhl, and that ih,. ( »|li,.p buur« in j VacBtiim riiimin a^ lierMdtnre, from iiiiiu I A. M. t.) ihrrc II'. I.H-k, ;■. M, I BA8TEII TBHM, O UKO. IV. { Ic w (hilnril, ihni in future, where a rule to shew cnii«u Ik (ilit.iined m iln^ j Court to sot a.-iilc an award, the Kveral objections ihi ixtn, inlcndi d t„ bo iiiHim. -i upon at the time of making such rule ab. solute, shall bo staled in the rule to show cause. HILABY TRRSI, 7 GEO. IV. XIII. It is Ordrrfil that from and iili.r the last day of this Term, all demurr. r books ■hall be made up wiih mnrt'inal notes op. posite the different couni.-, imd „||,,r part* of the pleadinfrs, brii (ly Hlatinj; tho substance of each purl, and when so com. pletod shall ho delivered to t||,. judffcs by die party applying for a concilium before his motion is filed. XIV. In future n« ul all Ihe pkaUiii|>* u\ the »iiil, I and ot ibi |i(/ii|i or puiiiM rp»rr*ed. rhall I 111' made up and lii-bt, t. .1 ■.. ii.. In,);,.,)., jhy ihi' party whotppiu - ,■ tor I a con. Imm to arsue nioh p., i.i „r p.,iii(i, or nmken any oiln r nioiinii rMpeiimg iheni, and llinc no mn h motion nlmli be made till ill, pap.r bo.iks be df 'lurtd RAITKIt TKH.M, » UKO. IV. I. It i« nr,/.r»< ilmi the nrvenih rule.it j this f.iiirt madr in .Mi.hn. hiiin 'IVrm, I j (.!ei). IV. b« reM:iiii|i(|, and ihat in liiiiin I no jud^iiieiii he entered or any warnini ol j Attorney lo condus jiidumen, or upon .-iny «'o)fnovil Aoliiiiiem ihat chiill mil |i vr been (ir l.'HK 1, nrfiiiriR df niiimr!', Hptcial cnses, spcciul voidicis, or points rcHfrvnl ; ami llml on thosp dayH the paper \ml be tjone llirougli boCorc liny otliir inuiion or biisincs,s is en- lortnined. EASTER TEltM, IJ OEO. IV. I. It >" Onlirnl by iho Court tlmt ihc ISth rule ot iliis Court be rencin.lod, and that lieneeCorib tlie Clerks of Assize shall at. tend in Court during ibo Hr.st four days of the Term, iinnii ihiu.ly folKAvm;,' the Assizes in each DiMnct, wilh all Indict, mcnts. Records, and proccedini,'s from their respective Circuits, together with the various exhibits hied in each cause, and not returned to the parlies by order of a Jud^e, and that they shiill, immediately after the rising of the Court, on the fourth day of iis sitlmi.', return to the Crown f )f. (lee all Indictmeiils, Records, I'roceedinjjs and Kxhihits remaining in their pusses, sion, and shall, at the sumo time, daliver to the Clerk of the Crown a list of the same. II. It is Orrfer/-*/ by the Court, that troin and alter this Term ot Easter, on every .ludge's summons or appcuntment, to be made by the master, [having been served on the day previous to that on which the aitendanee shall be required,] the person on whom the same shall be served, and who shall be required to attend, shall at. tend such summons or appointment with. out a second, or, in default Ihereol, the Judge or Master may proceed ex parte on the first. III. It is <9rrfeiW by the Court, ihat after this term the practise of the Court of King's Bench in Knj,'land, with respect to Imparlance, shall not be in use in this Province, but that in all cases the party shall plead at the expiration of the demand of plea, unless he obtain an order lor liir. iher time. IV. It IP (In/rird by the Court that, here. alter, no rule to plead, reply, or rejom, shall be necea««ry, but ihut a demand shall be sufficient, as iii respect to a plea in actions by non-bailablc process. V. It is Ordered by the Court that, hereaf. ter, it shall be sutlicieut to leave the con. sent and plia wi ej.etmrntat the Office ot the Clerk of the Crown and Pleas, and that no entry thereof need be made with aiiyjudye. VT. It is Ordered by the Court that, hereaf. ter, it shall not be necessary to furnish is. sue.books or paper books in any case, and that the clerks, in passins the record, shall add the similiter as of course. VII. It is Ordered by the Court, that the 5th rule of this Court, made in .Michaelmas Term, 5 Geo. IV,, be rescinded, and that in future no original declaration or other pleading, roll, or record .shall be received iti the Office of the Clerk of the Crown and Pleas, or of any of his deputies, un. less the same be engrossed or written in a plain and legible manner. VIII. It is Ordered by the Court that, hereaf ter, any number of names may be included in one writ ot subpcona. IX. It is Ordered by the Court that, in any action of the proper competence of the District Court, in which final judgment shall be obtained without a trial, the Mas. ter shall tax no more than District Court eosis, unless specially authorized by or. der ot the Court, or of a Judge in vaca. tion. X. It IS Ordered by the Court, that fees shall not in any case bo taxed to more than two counsel, upon any trial or ar. gument to be had hereafter. XI. It is Ordered by ilie Court, that no Counsel's fee on motions shall be taxed in respect of any rule which may be ob. 'iiined, without tiling amotion paper in Coiiri, Of !u Term time. nii.F.y of < lit i;r. 117 ■ hut a deniaiid respect lu a plea e process. nirt tlinl, hereaf. tolenve tlio con. itat thfOflite ol und I'lean, and il be iiiiidu with luri llint, licreal- ary to liiriiisli is- .» in any case, wing the record, if course. iirt, tliutthc5th in .Michnelniaa indcd, and that iration or other mil be received of ihc Crown 8 deputies, un- J or written in irt (hut, hcroaf. nay be included irt that, in any letencc of the final judgment trial, the ."VIus- District Court horizod by or. fudge in vaca. iirt, that lees axed to more ly trial or ar- ■our;, that no ^liall be ta.\ed Il may bo oh. ilion paper in .\U. ft is Ordnril l.v the Court, that no fee or other chanro i-liajl he payable for any writ to warrant a toslaimn, unlcra wich writ shall be actually sued out by the par. .XHI. Il is Ordered by the Court, that at the foot of every bill to be hereafter taxed, j the Attorney shall certify under hifi hand thnt every service Miid di-hurdenient I charijrd has been aotiially and nreessnnly rendered and made, which crtilicate flhali, nevertheless, in no ease, bo token to dispense with the rcipM'iite allidavil of disbursements, or to warrant any charge not otherwise taxable. It is Ordrred by the Court, tint after this present Term of Kast-r, in v\,n- case in which the costs taxed shall exceed X2(l, it shall be necessary lor the Attorney obtaining tli,. ta.vnii,)n to leave with the Master a fair copy of such hill at the time of taxation, which copy shall he furnished gratis ; and that the master shall deliver into court, durinrr oaeh term, all such copiesof bills as have been furnished to him si,.,-,, the preceding term, on which shall appear the allowances as they have i been taxed. XV. It is Ordered by the Court, that an or. der for revising taxation may issue as a matter of course upon a motion in Court, or upon a Judge's Summons, and that all' fees upon such motions or orders shall be taxed OS on motions of course. A new table of costs was also settled and ordered by the Court. TRIIVITY TEn.n, II GEO. IV. It IS Ordrred hy the Court, that the process for compelling the appearance o( a Corporation aggregate in this Court, shall be by a writ of suminous, in the following form : — " 111/ the Oriice nJGod, .j-r. To the .Shcrifl'of Greetinu .- Wb command you that you summon the rinse.rt the prnpr-r nanir .if the Corpo. rail.. I, , I.I appi.nr be lore ii-; iii our Court ■ il our H.-neh at Tor..ii:,i, ,,ii ilm day ol to a,nw. r ihr eoniplainl ol A. H., in a (.'. a „t (ns the case may be,) and iiavc iliiii there this writ. U'lmess, the Il.m. (Chief Justice or .Senior I'uisni. Judge of the Court of King's j llench, as the ease may bo,) this I day of |„ ,1,0 y^,„r„f our I Reign." I Whirl, writ ^hall be served airreeobly ; to the I,aw nod praeiiee in Midland, in j respect to Corporaiions airgriL'aie ; and I that il, witliiii ,.j;,i,, ,|„yj) a,,,,,. ,|„. r,.tnrii ; of such proeos, the C.irp.iraiion having ' be'M, duly served ihrrewiih, shall noi have appeared, then it shall be competent to the plainiilT to obtain the process of dis. I Iringas, and lo |iroee.il thereon ai'cording to the law and praetiee in E,i;;land. EASTER TKRM, I WILLIAM IV. It is OrJeie,/ that wlioii the orii,'iiial or first process IS reipiired in the action of Dower, a writ „f siiniiii.wis may issue under the seal ot tins Court, iii the follow, ing form ; — " WilHinn the Fuiirlh, i\r. To the .^luriirof C.rkmim; : Command A. li. that justly and with, out delay, he render to C. I)., widow, who was the wife of K. F., her rcosona! bin dower, which falleth to her of the freehold, which wasof 10. F., her latehus. band, in whereof she has nothing, as she says, and whereof she complains that the said A. li. dcforceth her, and un. less he shall do so, then summon by good siimmonera, the said A. li. thai he be be- fore us in our Court of our liench at To. ronto, on the day of Term, to show wherefore he has notdoiio 11, and have there the suminouers and this writ. Witness, (as in other writs is. sued frim this Court.) The lime of return to he conformable to the English practice in such cases. HILARY TEK.n, I WILLIAM IV. I. Il IS (hderiil, that in real actions gene, i rally a writ ui Hiiminons may issue Irom IIH liiT.iis iiv toi'iir. iliis Coiiit, i'(irrr>:pfiM(liti.'r Willi III,. j,,r„| iiHii-il ill lliiulnml, mill K fled jn i\,f. Haiiu- iimiiiirr IIS wtKh oi Ciiiiin" ad RrxiMiiidcn- iliiui, iHsiird frmii iliis Court. 'J'lic tiinu of reliirn lolio conformulili; tu ilic KnglLsli praclico in such cases. II. It is nrderctl, that wlion liy re.ison of any privilriro, ihr procoodinijs arc not coiimrpni-cd by writ of Capia>< ad Kropon. diiidiirn, ii Niiiand of plr.i nriv lio srrvod 111 any tinir wlipp, by ibc prnctirc in Kn. f,'land, a ride lo plc^nd niiiiht bp tfivrn, and not liefirc ; aiici that \\w. sorvico of such dcniaMd of plea shall siidicc as in olhiT cases, without iho necessity of tak- ing out any rule to plead. nr. It is Orili'vcil, ioT Ihc more convenient and safe kei imii; of the jtecorda of this (^onrt, that nil Rolls and Recorda to be filed with thn Clerk of the Crown, shall bo upon parcbnienf, or paper of siieb width anil lenjitli a.s he .sliall prescribe liy a written notice to be nlli.xed to some coiispicuoiis place in \\U ollice, and in iheolfioe of each of bis depnties, and thai the iillire shall not be bound to receive any Roll or Record not iiiaile, up in con- forniity to such notice. N. U — Not to exceed IJ inches in length or four in widih. if. TRINITY TKKM, 3 dt 4 WILL. IV. I. It is Ord.rcil, that in fulure, when bail which has been put in in the country is to be justitied in Court, the bail. piece, with (he aliidavit of the due taking there- of, and the aliidavit of jiislitication, shall be taken from the Deputy Clerk of the Crown of the District in which they have been filed, and shall he pr.idiicodin Court upon the motion fiir allowance, and afier. wards filed in ibe Office of the Clerk of the Crown and Fleas at Toronto, and that the Uepuly Clerk of the Crown .shall, on notice ({iven to him for that purpose, on behalf (if the party inoviiig for allow- ance, transmit the same to the principa Where tin.' Del.ndnni is described in the process or affidavit lo hold to bad by initials, or by a wrong name, or without a christian name, the Defendant shall not be disehiirged out of custody, or the bail. bond dilivercd up to be cancelled on mo. tion (or that purpose, if it shall appear to the Court that due diliL'enee have been used to obtain knowledge of the proper naiiic. , Ilf. It is OrdrrnI thai, upon every bailable writ and warrant, and upon the copy of any process served for the payment of aiiv debt, tlie aiiioiinl of the debt shall bo staled, and the amount of what the I'lain. tifi''8 Attorney claims for the costs of such writ or process, arrest or copy snd service, exclusive, of mileage and an r '. ance to receive debt and costs; and ihut upon payment thereof, within tour davs, to the I'lamtiffi'H Attorney, or to the Plain- Idf, when the writ shall have been sued out by the Plaintiff in person, further pro- ceedings will be stayed. Rut the Defend- ant shall be at liberty, notwithstanding such payment, to have the costs taxed, and if more than one.sixth shall he disal. lowed, the Phiintilf's Attorney shall pay the costs of taxation. The indorsement shall lie written or printed in the following form : — '•The Plaintiff claims for debt, and for costs, exclusive of mileage; and if the ainmiiit thereof, wiih the charge lor mileage, be paid lo the Plaintiff's At- torney, (or to thePlainliir, ifhesuesin per- son,) within four days from the service hereof, furdier proceedings will bestayed." IV'. It is (hv Kl"LES> OF iVorKT. Hi* is (Inscribed in ) liolii to bail by inir, or without '■ndant shall not i)(iy, or thp bail, moelled on mo. shall appear to ■nre have been ; of tho proper 1 ovrry bailable )on the copy of he payment of lie debt slinll bo wlmt the Plain. r ihr costs of jst or copy snd igc and ait -r '. ^nstp ; and shut Iliin four dayq, or to the Plain, mvo boen sued on, further pro- ?m the Defend. iOtwillialanding e cosia taxed, shiill be disal. )rncy shall pay indorsement in the following for debt, live ot mileage; vith the charge Plainlifr's At. "he sues in per. ni tho service ivill he stayed." ' affidavit shall (' or christian lie Defendant, place of abode ^j t, ■■ A \<: expense of a e the copy of a )lic document, c costs, unless tf.' psr.y c„i;:n, h,m shall, «.,:l„n a rca. MICHAELMA.S TKUM, t Wl- r IV sonaMc i,jnr|,e(,.rc the irml, have rcjuir.: ,- , "■ 'i « ^M-L.U cd the ndvors. party, by notice in writing I „ ' " '^ '' "'" "'" ' ''"= '''" ''•'>■ "' and prodwci^ur. of such copv, to adnHtl'. *" , "'"'' "" -^"-""-y of this rnich copy, and unless such adverse parly ',:""" "" "'"" " *"' "*' "^'l""'. "^^ =» simllhave refused or ne,.-lcoird to make ' ,',',";'"""'"" '""">■ "^"-^^ '" «l"ch he such admission. This rule not to take p,'" '"' '^''"'••""«''' »» Attorney for the etrcct until next .Miehaolnias Term. i """ V] 1 EASTER TEnsi, 4 WILL. IV. Ic is Or,i.r..J, that the expense ^f J ,!;,'' ^'(^'^ ""^'-ho mle of ,h,. Court, -unesscalled only to pro t a ,d wr„ ' ^ """\ ' """' ' '''"'' ' '''"'• ''- -"-•• ■ng to. or the execution o a ^ t^m^ ! ZZ '" '''"' "''"'" ^"^" '=''"""" Mrumen. stated upon the pleadings ,,, ' i m J th 'dT? " """" "" ^"• not be al!o«ed, unless the adverse party | w ,| In Ic /"f ° T '"'""" "' ''■"^""• elmll, upon summons before a Judge a ^Ti mtTTr ' ' "' "'''''"'' ''" reasonable time before the .rial.Tucl^ ' tVn ' ^'•"Pocts the place of summons s,«„ng therein the „;•,; ^e' i '"'"^'^ ""'^ "^duion o. Defendant. scription, and place of abode of the in. tended witness,) have neglected or rcfus. cd to admit such hand. writing or cxecu. tion, or unless the Judge, upon attend, a nee before him, shall endorse upon such summons that he docs not think it reason- able to re^iuire such admi.s.fion. This rule not to take efTcct until .Michaelmas Term next. VII. Asummons for particulars, and order thereupon, may be obtained by a Defend, ant before appearance, and may be made if the Judge think fit, without tho produo. lion of any alTiduvit. II. It is Order e, I, that the rule of Raster Tcrin, 11 Goo. IV., regulaung the amount ofcoststobetaxed, m civil and criminal cases, be amended, in that part of it which relates to the Counsel's fee, wiih brief at trial or as-.sessmpnt ; bv adding, at 'be end of that Item, the words " or by order of a Judge," to such sum as shall appear proper under the circumstances of inc ca.«e. THIMTY TEHM, 5 WILL. IV. I. It IS On/rrrV, thaiin fuiure rules Nisi (or re/errin.r to the Master, to compute principal and interest, and to pay tho costs after judgment by default, in actions "Pon promissory notes, or in other ac. lions m which a reference mav be made to tho Master, lor ihc same purp„9e» may, ,f the plaintifls fhall desire it, bj made returnable at the e.vpiration of such number of days, after the day of service, as shall be expressed in such rule ; and that the practice be the same in this re. ^pect, upon Judge's summons for tho It .s Ordered, that judgment may here KTl"?'"''- /^"': '' '= '^'^''" ^-''^■ after be signed af.er verdict, oT ass ! 'c ^ ZZ , ■""' '"'"^" "'""■ ment of dama^-es without anv °'f'''- , '"'^' "^ "P'^" '''« graniing ol a .fudge's ..dgnient, b,i,;ot b!:!^';; Li 'wii :; i:;^ nit ""• •"^r'-""^-^ I'.d.^inent mav bo --rrd ar-rH. ,1, I ^T " '"' ''°'"'' ""'' '""''■ "P '"« present practiced th^C: n "'" " '"^ 15^:"' T""-' -"« ^^ -''^^ ^'^ ' lo'dtr, or of any notice ; and (.hai he r' !u KJ VII [. It shall not be necessary that any plead- ings whicli conclude to the country, be signed by counsel. IX. It shall not be necessary to the regular service of a rule, that the original rule should be shewn, unless sight thereof be demanded, except in cases of attachment. X. 120 Kl'LES OF COVRT. Nisi, or Judge's Summons, «hnll br so drawn up as to apprize the Dclcniiant itmt judgment will be entered wiiliout fur. thtr notice, imlees cause be shewn to tlic oonirnry. 11. Ii is OrilrrnI tliat the (ollowing fee." be ill lowed (0 Coroners for the services licre. innfier named. J'oi' summoning Jury, and niakiiic; return to Clerk of Assize. For each Juror, actually and ncccssari- ly Puinnioiied, Is. In other respects, same fees as to She- rinV, for similar services. TO WITNESSES Residing within three miles of Court House, ijs. Cd. per diem. Do. over three miles,... .5s. " .'\nd for every twenty miles travel, 3= heretofore. rrOFESSIONAL .MEN, Attornty», Barri»ter», Phijiinant, and Surgeons, Jfls. per dny, whin called upon to give evidence in consequence of any profes. sional service rendered by them, or to give professional opinions. SI.'RVEVOn':. When called upon to give evidence of any professional service rendered by (hem, or to give evidence depending upon their skill or judgment, 10s. per diem. IHICIIAELaiAS TERM, 3 VIC. It is Onlcrtd, that the causes at Nisi I'rius shall hereafter be called and tried in the order m which they stand in the dock, et, and according to the practice in Kng. land. THE KND. m V, yjiViin*, and upon to pivc ofany profoa. y ilicm, or to idcnce ol any red by ihciii, lending upon ;09. per diem. »I, 3 VIC. auscs Bt Nisi d and tried in i in the dock. dice in F.ng. KItUATA. r*or ■!, line , 30— Fur "Russeli" read " BuescD." " 27, last line — For "rxinrcd" road "unexpired." " ;):.', last line lirst column, and second and third lines Irom the top second column, (lelr, "not" and " the covenants executed by A. alone not btintf sullioicnt." " 77, eighth and ninth lines trom the foot of second cohini*— For " poundage" rcr.d " milcafjc."